Archive: December 2008

1
Maine Adopts Amendments to Rules of Civil Procedure
2
Court Enforces Clawback Agreement, Denies Motion to Compel
3
Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived
4
California Legislature Reconsiders E-Discovery Amendments
5
A New Year’s e-Resolution: Sending Safe e-Mail
6
New Additions to the Growing List of State E-Discovery Rules; Arkansas and Kansas Added for the First Time
7
Court Declines to Order Re-production in Electronic Format; Finds No Waiver of Privilege from Inadvertent Disclosure
8
Court Addresses Production of Metadata in Great Detail and Grants Production of Some but Not All Data Sought
9
One More Round: Court of Appeals Affirms All but Scope of Remedy, Remands with Specific Instructions to Narrow Scope

Maine Adopts Amendments to Rules of Civil Procedure

Effective August 1, 2008, Maine has adopted amendments to its Rules of Civil Procedure to “address the need for specific treatment of the discovery of electronically stored information.”  As stated in the Advisory Committee Note to Rule 16, the amendments were taken largely from the 2006 amendments to the Federal Rules of Civil Procedure and practitioners are instructed that “guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee’s Notes, and cases applying to the federal rules.”  The amendments affect rules 16, 26, 33, 34, and 37.

To view the amended rules, click here.

Note:  Following adoption of the amended rules, the court adopted corrections to the amendments of rules 34 and 37.  To view the corrections to the amendments of Rule 34 and Rule 37, click here.

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

Court Enforces Clawback Agreement, Denies Motion to Compel

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008)

On the eve of trial in this case in which plaintiffs alleged trade secret theft, the court granted an extension “on urgent party request” so that additional discovery could be accomplished.  The discovery proved to be complex, and the court appointed a special master to manage the electronic discovery issues.  Thereafter, the parties negotiated a stipulation, approved by the court, which included a clawback procedure (“the Clawback Agreement”) to handle the return of privileged documents.  The Clawback Agreement provided that in the event of disclosure of a privileged document, the document was to be returned upon written demand.  If the recipient of the document wished to challenge the privilege claim, they were required to do so in writing, within five days of receipt of the demand for the document’s return.  The special master would then resolve the dispute following an in camera review.

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Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived

Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Wash. Ct. App. Nov. 25, 2008)

In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor.  About one month after filing suit, plaintiff served his requests for production.  In response, the District produced approximately 439 pages of documents, including four confidential letters between the District and its attorney regarding the litigation.  Three years later and ten days before trial, plaintiff sent copies of his proposed exhibits to the District, including the four confidential letters.  The District objected to their admission on the first day of trial, arguing that they were protected by attorney-client privilege.  In response to a question from the trial court regarding his role in the production of the letters, the attorney for the District responded that the letters did “go through” him and he stated, “…I guess I just wasn’t thorough enough.”  The trial court denied the District’s motion to exclude. Eventually, the jury awarded plaintiff $151,000.

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California Legislature Reconsiders E-Discovery Amendments

On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information.  As stated in AB 5:

This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any party to the action.  This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection of documents, tangible things, land or other property, or electronically stored information.

The proposed amendments closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.

This bill is virtually identical to the “original” e-discovery bill, Assembly Bill 926, vetoed by Governor Arnold Schwarzenegger earlier this year.  The notable exception is the inclusion of an urgency clause which would make the bill effective immediately upon signing.

To read the full text of Assembly Bill 5, click here.

A New Year’s e-Resolution: Sending Safe e-Mail

The risks associated with e-mail miscommunication and misdirection have been well documented. Because these risks originate from e-mail users, perhaps the best way to mitigate such risks is to help individual e-mail users remember and implement a checklist for sending e-mails safely. This client alert, authored by K&L Gates Partner Thomas Smith and Associate Daniel Miller, presents a simple mnemonic device for "SAFE E-MAIL" that can remind individual e-mail users of key issues to consider when drafting and sending e-mail messages.

To view the complete alert online, click here

New Additions to the Growing List of State E-Discovery Rules; Arkansas and Kansas Added for the First Time

Arkansas
Effective January 10, 2008 Arkansas has amended Rule 26 to address inadvertent disclosure.

Rules 26 General Provisions Governing Discovery (See section 26(b)(5))

Iowa
Effective September 1, 2008 the Iowa District Court Trial Scheduling Order was amended to address the discovery of electronically stored information.

Rule 23.5 – Form 2: Trial Scheduling Order

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Court Declines to Order Re-production in Electronic Format; Finds No Waiver of Privilege from Inadvertent Disclosure

Laethem Equip. Co. v. Deere & Co., 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008)

In this case involving breach of contract and other claims, the court ordered the defendant to return inadvertently produced, privileged, electronically stored information (“ESI”) to the plaintiffs, and ordered the parties to secure all relevant ESI in their possession and file a written outline of the secured data (“data log”) with opposing counsel and the court.  Upon receipt of plaintiffs’ data log, defendant filed a motion to compel the production of all of the data outlined therein, to compel an explanation regarding allegedly spoliated, missing, or altered documents, for an order that all privilege as to the inadvertently produced documents had been waived as a result of plaintiffs’ “misconduct”, and for a finding that plaintiffs were in violation of the civil rules and a prior order of the court, among other things.  Some of these issues were referred to the magistrate judge for hearing and determination with all other issues reserved for a future hearing.

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Court Addresses Production of Metadata in Great Detail and Grants Production of Some but Not All Data Sought

Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008)

In this class action case alleging unlawful searches and seizures of plaintiffs’ homes, a discovery dispute arose regarding the production of metadata.  The court granted in part and denied in part plaintiffs’ request for the production of metadata for several types of electronically stored information (“ESI”) including email, word and excel documents, and databases.

On January 18, 2008, the parties agreed to undertake some discovery despite defendants’ pending motion to dismiss.  About that time, defendants began to collect relevant materials from its employees.  Plaintiffs served their first requests for production on February 15, 2008 but failed to address the form of production or metadata.  The issue was first mentioned by plaintiffs on March 18, 2008 but only “in passing.”  By this time, defendants had completed most of their collection efforts.  On March 22, 2008 plaintiffs requested the production of emails and other ESI in Tagged Imaged File Format (“TIFF”) with corresponding load files containing metadata fields and extracted text and that spreadsheets and databases be produced in native format.  The parties conferred on July 1, 2008 to discuss the format of production of ICE’s hierarchical databases.  On July 14, 2008, defendants objected to the production of ESI in the forms requested by plaintiffs on the grounds of relevance and burden, and proposed production in the form of searchable PDF instead.  Defendants also stated they would provide metadata for a particular document only where plaintiffs could demonstrate its relevance to their claims.  Despite several attempts, the parties were unable to reach agreement.  Thus, it fell to the court to address plaintiffs’ requests.

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One More Round: Court of Appeals Affirms All but Scope of Remedy, Remands with Specific Instructions to Narrow Scope

Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008)

On December 1, 2008, the Court of Appeals for the Federal Circuit issued its opinion affirming the lower court’s findings that Qualcomm breached its duty to disclose the patents at issue in the underlying case and thus waived the enforceability of those patents.  The Court of Appeals also upheld the lower court’s finding that this constituted an “exceptional case,” and the resulting award of attorney’s fees to Broadcom.  The Court of Appeals took exception, however, to the scope of the waiver remedy articulated by the lower court, vacated that portion of the order and remanded the case with instructions to narrow the scope.

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