Archive: January 2012

1
Plaintiff Sanctioned for Burning Personal Computer
2
True Grit: Four Models to Rein in E-Discovery Costs
3
D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing “Discovery Services Companies”
4
Failure to Produce Originals Could be Spoliation in Third Circuit
5
The Sedona Conference® Issues “International Principles on Discovery, Disclosure & Data Protection”
6
Plaintiff “Entitled” to Search Non-Party’s Personal Hard Drive Pursuant to Modified Subpoena
7
The “American Rule” Rules: Court Declines to Compel Defendants to Share Cost of Plaintiffs’ Subpoena

Plaintiff Sanctioned for Burning Personal Computer

Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, 2012 WL 206141 (S.D. Ala. Jan. 24, 2012)

In this case, the defendant sought to compel the production of additional information and sanctions for plaintiff’s destruction of her computer.  Following its analysis of the facts, including plaintiff’s admission that the computer used during the time of her alleged harassment had been burned and replaced, the court granted defendant’s motions and compelled production of additional ESI as well as plaintiff’s new computer and imposed sanctions, including an adverse inference instruction.

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True Grit: Four Models to Rein in E-Discovery Costs

By Robyn Weisman & Monica Bay
Law Technology News, January 30, 2012

Today’s top law firms and their corporate clients are struggling to find the right combination of people, processes, technology — and facilities — to effectively control the quality and costs of electronic data discovery.  The risks are acutely visible for those who stumble: not just court-ordered sanctions, but lost data, cases, clients, profits, and reputations.  So how can major firms speed up the processes, hire the right personnel, meet ethical obligations to protect client confidentiality, cooperate with opposing counsel, maintain proportionality (i.e., not spend more on EDD than appropriate for the potential exposure of a case) — yet quickly find and process appropriate data?  There’s no "one size fits all" single answer, but four models seem to be developing as loose frames:

To read the entire article, click here.

D.C. Court of Appeals Committee on the Unauthorized Practice of Law Issues Opinion addressing “Discovery Services Companies”

On January 12, 2012, the D.C. Court of Appeals Committee on the Unauthorized Practice of Law (“UPL Committee”) approved Opinion 21-12 addressing the applicability of D.C. Court of Appeals Rule 49 to “‘discovery services companies’—companies that state they offer comprehensive discovery services, including assistance with large scale document review, to legal services organizations.”  Rule 49 prohibits the unauthorized practice of law.  The Opinion specifically recognizes that in recent years such companies have “dramatically expanded the scope of their services” and have “begun to describe their services in increasingly broad language.”  Accordingly, the UPL Committee, through Opinion 21-12, sought to clarify the proper scope of services that such companies may offer and how those services may be represented to potential clients.

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Failure to Produce Originals Could be Spoliation in Third Circuit

Bull v. United Parcel Service, Inc., 665 F.3d (3d Cir. 2012)

In this case, the appellate court concluded that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information,” but found that in the present case, the District Court abused its discretion in finding that spoliation had occurred and in imposing a sanction of dismissal with prejudice.

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The Sedona Conference® Issues “International Principles on Discovery, Disclosure & Data Protection”

In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version).  Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”

From the Introduction:

Here, TSC advances its position that data protection and discovery must co-exist.  Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders.  Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.

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Plaintiff “Entitled” to Search Non-Party’s Personal Hard Drive Pursuant to Modified Subpoena

Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011)

Defendant moved to modify a subpoena which sought access to a non-party’s personal hard drive.  Upon plaintiff’s clarification that he would bear the costs of the search and cooperate to negotiate search terms and that he sought only the non-privileged ESI identified by search terms and not all contents of the drive, the court ordered that the non-party’s counsel could review the results before production and allowed the search to go forward.

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The “American Rule” Rules: Court Declines to Compel Defendants to Share Cost of Plaintiffs’ Subpoena

Last Atlantis Capital LLC v. AGS Specialist Partners, No. 04 C 0397, 2011 WL 6097769 (N.D. Ill. Dec. 5, 2011)

In this case, Plaintiffs proposed that Defendants share in the cost of obtaining data that Plaintiffs subpoenaed.  Obtaining the information at issue was described by the court as “the linchpin of this entire matter.”  Moreover, the court had suggested (at a status conference) that it would be “reasonable” for Defendants to aid in half the costs.  However, Defendants “steadfastly maintained that they ha[d] no independent need for the information, except for rebuttal purposes” and objected strongly to the proposed cost-sharing on the grounds that there was “neither reason nor precedent” for it.  Noting that “the time to take definitive stance on the issue ha[d] arrived,” the court agreed.

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