On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective. The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”). Among other things, the amendments address issues including the parties’ obligation to meet and confer, the format of production, and safe harbor from sanctions when ESI is lost as the result of the routine, good-faith operation of an electronic system.
By: Martha Dawson, Michael Goodfried, K&L Gates
This article appeared in DRI’s E-Discovery Connection, Volume 5 Issue 3, on December 23, 2010
Consider how you, or someone you know, uses social networking sites; and consider how valuable this could be in litigation.
• “Check out the photos from my climb of Mt. Rainier. It rocked! I guess my back injury wasn’t that bad after all.”
• I can’t believe what my boss just did.”
• “My kids are driving me crazy. Anyone want to borrow them for the night?”
Are Social Networking Sites Discoverable?
Social networking sites are internet sites on which individuals or companies can create profiles about themselves and share information with others. Users can update their status, type blog entries, post pictures or videos, send email or instant messages, or post comments on the profiles of their contacts, among many other offerings. One of the most important aspects of social networking sites is the ability to link up with other users as “friends” or “contacts,” and decide with whom to share information. Users can control their privacy settings and choose which information to make publically available, share with their contacts, share with their contacts’ contacts (friends of friends), or show only to certain individuals. Some of the most popular social networking sites are Facebook, MySpace, Twitter, and LinkedIn.
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Willis v. Willis, 914 N.Y.S.2d 243 (N.Y. App. Div. 2010)
Plaintiff filed suit against her former husband and his current wife alleging defamation. Specifically, plaintiff alleged that defamatory statements had been made in an email addressed to her and sent to her account – an account which was also regularly used by the former couple’s children. One of the children read the email. Plaintiff alleged that the act of sending the email to that account constituted publication for purposes of her claim.
In the course of litigation, plaintiff used the same account to communicate with her attorneys. Defendant sought production of those emails contending that they were not privileged. Plaintiff sought a protective order. The trial court ordered their production. On appeal, the court found that plaintiff “failed to meet her burden of demonstrating … that the email communications … were made in confidence” and reasoned:
DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)
Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery. After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI. The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope. Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.
By: Julie Anne Halter, K&L Gates, Seattle
This article appeared in the Puget Sound Business Journal the week of December 10-16.
United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010)
In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails. Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”
Effective October 1, 2010, the UK has introduced Practice Direction 31B addressing in detail the disclosure of electronic documents. According to the Ministry of Justice, this new Practice Direction “aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.” A comprehensive discussion, the Practice Direction addresses a myriad of topics, including preservation, topics for discussion between the parties, reasonable searching, keyword and automated searching, the disclosure of metadata, and the format of production. The Practice Direction also provides an “Electronic Documents Questionnaire” which may be exchanged by the parties “in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings.” The questionnaire, like Practice Direction 31B, is quite detailed and covers issues like the scope of a reasonable search, suggested search methodologies, preservation, and potential problems related to electronic disclosure.
Practice Direction 31B is available here.
Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)
Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*
Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)
In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation. Relying on the agreement, defendants provided access to “their core business secrets.” When the case settled, plaintiff’s counsel discovered that defendants’ information had been backed up to “numerous back-up tapes” on their law firm’s computer system. Plaintiff then sought to modify the confidentiality agreement to allow the firm to retain the information “subject to proposed safeguards designed to protect the confidentiality of the information” in light of the cost of deleting the information from the tapes. The motion was denied and plaintiff appealed.
In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)
On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues. The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …” The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things. If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought. The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”