Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery.  Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants.  Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

• Email This
• Print
• Comments
• Trackbacks

Available now from PBI Press, e-Discovery provides guidance for practitioners of all levels of experience through the often complicated world of e-discovery.

Once again showcasing the depth of knowledge at the firm, four of the fifteen contributing authors to the publication are members of the K&L Gates e-Discovery Analysis and Technology Group.  Those members are Tom Smith, David Cohen, Daniel Miller, and Lynn Reilly.

To learn more about this valuable resource or to purchase a copy of your own, click here. 

• Email This
• Print
• Comments
• Trackbacks

For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public.  Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation.

Several sections address the topic of electronic information.  For example, section 3.2.6.2, “Form of Production,” provides a detailed explanation of what is expected of those responding to an SEC subpoena, including a discussion of the SEC’s preference for electronic production.  Section 3.2.6.2.3, “Format for Electronic Production of Documents to the SEC,” provides even greater detail regarding the production of electronic information.  The manual also provides valuable guidance on privilege logs, bates stamping, records certifications and much more.

The full text of the Enforcement Manual is available here.
 

• Email This
• Print
• Comments
• Trackbacks

Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008)

In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things.  The parties attempted to negotiate the terms of such an order, but could not agree on several issues, including whether only portions of documents should be designated as “confidential” if the entire document did not rise to that level.  Under the parties’ proposed terms, materials designated “confidential” would have automatically been sealed if filed with the court.

• Email This
• Print
• Comments
• Trackbacks

Effective January 1, 2008, amended Local Rule 16.1 specifies appropriate topics for consideration at the Initial Pretrial Conference, including the production of electronically stored information (“ESI”).

Click on the following link to see amended rule:

Local Civil Rule 16.1 Pretrial Conferences (see subpart (G) Initial Pretrial Conference)

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our updated post here.
 

• Email This
• Print
• Comments
• Trackbacks

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.  Here is current collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols that specifically address e-discovery issues, with links to the relevant materials.

Eastern and Western Districts of Arkansas
Local Rule 26.1 Outline for Fed. R. Civ. P. 26(f) Report

District of Alaska
Local Form 26(f):  Scheduling and Planning Conference Report (see item 4(B))
Local Rule 16.1 Pre-Trial Procedures (requiring use of Local Form 26(f) or one substantially similar)

District of Arizona
Order Setting Rule 16 Case Management Conference (Magistrate Judge Michelle H. Burns)
Order Setting Rule 16 Case Management Conference (District Judge David G. Campbell)
Order Setting Rule 16 Case Management Conference (Magistrate Judge David K. Duncan)
Order Setting Rule 16 Case Management Conference (District Judge Mary H. Murguia)

Northern District of California
Standing Order For All Judges Of The Northern District Of California: Contents Of Joint Case Management Statement (see item 6)
Local Rule 16-9 Case Management Statement and Proposed Order (requiring parties' Joint Case Management Statement to include all topics listed in Standing Order)

District of Colorado
Appendix F: Instructions for Preparation of Scheduling Order and Form Scheduling Order
Appendix F.1: Scheduling Order
Stipulated Scheduling and Discovery Order for Cases Assigned to Judge Kane
Senior District Judge Richard P. Matsch’s Instructions for Scheduling Conference

District of Connecticut
Local Rules 16(b), 26, 37 and Form 26(F)

• Email This
• Print
• Comments (1)
• Trackbacks (3)

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond.  The case was eventually referred to Chief United States Magistrate Judge Paul Grimm for the purpose of resolving all of the discovery disputes.

In the initial review of defendants’ objections to the requests, the court noted “an obvious violation” of Federal Rule 33(b)(4) and “facially apparent violations” of Federal Rule 33(b)(2) which require that objections to interrogatories and requests for production be laid out with specificity or else they are waived.  Moreover, the court suggested that the defendants’ failure to be particular in their objections “suggested a probable violation” of Federal Rule 26(g)(1) which requires a reasonable inquiry prior to objecting to an interrogatory or document request.  Accordingly, the court scheduled a hearing to address the issues.

• Email This
• Print
• Comments
• Trackbacks

Star, Inc. v. QFA Royalties LLC, No. 07-cv-02223-WYD-CBS (D. Colo. Filed Oct. 10, 2007)

In this case, the court granted an unopposed motion of the defendant to enter an order governing electronic discovery.  The proposed order adopted by the court was intended to “expedite the flow of discovery material and facilitate prompt resolution of disputes over production of electronic materials…”  Included in the order was a provision requiring each party to identify an “e-discovery liaison” through whom all discovery requests and responses would be made as well as provisions providing instruction regarding search methodology, timing of discovery, format of production, privilege review, document retention and costs.

A copy of the motion and proposed order is available here.

A copy of the court’s order is available here.
 

• Email This
• Print
• Comments
• Trackbacks

Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence.  Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings.   Therefore, a preservation order was necessary to prevent further spoliation.  The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

• Email This
• Print
• Comments
• Trackbacks

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication)

In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor.  Specifically, plaintiff alleged spoliation of the contents of the defendants’ website as it existed at the time the dispute between the parties arose, and of a particular letter from the Bank of New York.

• Email This
• Print
• Comments
• Trackbacks

In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008)

In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner.  In July of 2000, the debtor contracted with MBP to handle the debtor’s billing.  In February 2008, the debtor stopped doing business with MBP and started using Practice Resources Network, Inc. (PRN).  After switching, the debtor requested that MBP provide the debtor with a copy of its billing data so the debtor could determine the status of its claims. MBP refused.  Soon after filing for bankruptcy in March 2008, the debtor filed an expedited motion seeking copies of this data from MBP.  MBP objected and filed a motion for a protective order.

• Email This
• Print
• Comments
• Trackbacks

Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. 2008)

In this breach of contract case, Hoover moved to quash subpoenas issued by defendant to two non-parties:  Hoover’s mother and Hoover’s former roommate. The subpoena issued to Hoover’s mother requested inspection of her laptop or any electronic storage device “for documents copied, sent to, or received by her son” related to several entities, including the defendant.  The subpoena issued to the former roommate, Sanghani, also sought inspection of his laptop computer and any other electronic storage device or computer “that has any responsive documents.”  The subpoena further requested documents, “whether in paper form or electronically submitted,” between Hoover and Sanghani that referred to specific persons or topics.

• Email This
• Print
• Comments
• Trackbacks

Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008)

In this breach of contract case, plaintiffs alleged that defendants wrongfully obtained and used confidential information from former employee, Kenneth Fuston, who went to work for the defendants.  Specifically, plaintiffs alleged that defendants used the information to hire approximately 20 of plaintiffs’ employees, open new offices in eight cities, and embark upon a new line of business in competition with plaintiffs.  Plaintiffs moved to compel production of computers believed to contain information related to those claims.  The court had previously granted a motion to compel and ordered defendants to produce emails to or from any current or former employee or customer of the plaintiff found on Fuston’s home computer and documents reflecting communication with the defendant and certain former employees of the plaintiff. Defendants produced 1,936 pages of email.  Believing the production was incomplete, plaintiffs brought a second motion to compel. 

• Email This
• Print
• Comments
• Trackbacks

Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008)

In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff's production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff's business, satisfied the responding party's obligations under Rule 34 of the Federal Rules of Civil Procedure.  Plaintiff asserted that, pursuant to FRCP 34, it had produced the documents in the manner in which they were maintained in the ordinary course of business and therefore need not indicate to which request the documents were responsive.  In support of its position, plaintiff offered only the statement of an attorney indicating that the documents had been assembled as they had been maintained.

• Email This
• Print
• Comments
• Trackbacks

The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including several related to electronic discovery.  The amendments, which took effect on July 1, 2008, include changes to Rules 16, 26, 33, 34, 37, and 45.  According to the Supreme Court’s press release, key amendments include:

clarifying that issues related to electronically stored information are appropriate topics for resolution during pretrial conferences; clarifying that discovery of electronically stored information is permitted; amending to provide factors a judge should consider in determining sanctions when a party has destroyed potentially relevant electronically stored information; and specifying that a subpoena may be used to obtain electronically stored information from nonparties.

View Ohio’s amended rules here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

• Email This
• Print
• Comments
• Trackbacks

More and more states are adopting statutes and court rules addressing the discovery of electronically stored information.  Here is a current list with links to the relevant provisions.

Alabama
Amendments to Rules of Civil Procedure 16, 26, 33(c), 34, 37, 45 and Form 51A
Effective Feb. 1, 2010

Alaska
Amendments to the Rules of Civil Procedure 16, 26, 33, 34, 37, and 45
Effective April 15, 2009

Arizona
Amendments to Rules of Civil Procedure 16, 16.3, 26, 26.1, 26.2, 33, 34, 37 and 45
Effective January 1, 2008

Amendments to Arizona Rules of Family Law Procedure
Ariz. R. Family Law P. 49      Disclosure
Ariz. R. Family Law P. 51      Discovery
Ariz. R. Family Law P. 52      Subpoena
Ariz. R. Family Law P. 62      Production of Documents and Things and Entry
                                                  Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65      Failure to Make Disclosure or Discovery; Sanctions
Effective January 1, 2009

Ariz. R. Evid. 502
Effective January 1, 2010

Arkansas
Rules 26 General Provisions Governing Discovery  (See section 26(b)(5))
Effective January 10, 2008

Arkansas Rule of Evidence 502. Lawyer Client Privilege
Effective January 10, 2008

Ark. R. Civ. P. 26.1 Electronic Discovery
Effective Oct. 1, 2009

California
Electronic Discovery Act
Effective June 29, 2009

Rule 3.724     Duty to meet and confer
As Amended, Effective Aug. 14, 2009

Connecticut
Connecticut Practice Book, Superior Court – Procedures in Civil Matters
Sec. 13-9. Requests for Production, Inspection and Examination; In General (see subsection (d), at p. 192 of 259-page .pdf document)
Effective January 1, 2006

Florida
1.201 Complex Litigation

Idaho
Idaho R. Civ. P. 33
Idaho R. Civ. P. 34
Effective July 1, 2006

Idaho R. Civ. P. 45
Effective July 1, 2009

• Email This
• Print
• Trackbacks (6)

On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act .  In his veto message, the Governor explained:

The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session.  Given the delay, I am only signing bills that are the highest priority for California.  This bill does not meet that standard and I cannot sign it at this time.

The amendments included in AB 926 closely tracked several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  Among other things, the amendments:

• Email This
• Print
• Comments
• Trackbacks

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008)

In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes.  The court denied in part and granted in part Onex’s motion, and ordered Onex to produce all identified documents, except for two specific categories deemed unlikely to contain relevant information.

• Email This
• Print
• Comments
• Trackbacks

U.S. Court of Federal Claims
Rules of the United States Court of Federal Claims 16, 26, 33, 34, 37, 45

• Email This
• Print
• Comments
• Trackbacks