Archive: November 2012

1
Northern District of California Adopts New E-Discovery Guidelines
2
Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims
3
For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product
4
Court Orders Broad Discovery of Class Members’ Social Media, Text Messages & Email
5
Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification
6
For Discovery Violations, Court Orders Retention of Outside Vendor to Collect Responsive Documents, Investigate Possible Spoliation
7
Cloud Considerations: E-Discovery

Northern District of California Adopts New E-Discovery Guidelines

This week, the U.S. District Court for the Northern District of California announced "new Guidelines for counsel and litigants regarding the discovery of electronically stored information ("ESI")."

According to the Court’s announcement:

The Guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases.  According to Judge Laporte:  “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure.”

The package of new ESI-related documents comprises:

• Guidelines for the Discovery of Electronically Stored Information;
• ESI checklist for use during the Rule 26(f) meet and confer process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information.
 

To read the full text of the announcement, click here.
To access the new guidelines and related documents, click here. 

Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims

Taylor v. Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

In this case, the Magistrate Judge found that dismissal of Plaintiff’s claims was warranted for his “egregious” discovery conduct, including physically destroying a relevant computer with a hammer and using both Evidence Eliminator and CCleaner to erase potentially relevant evidence.  The court also recommended that Plaintiff pay Defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation.  On appeal, the recommendations were adopted by the District Court.

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For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product

United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT, 2012 WL 5387069 (D.N.M. Oct. 3, 2012) overruling objections to United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT (D.N.M. Aug. 31, 2012)

In this case, the Magistrate Judge determined that sanctions were warranted for the Government’s untimely and inadequate litigation holds, which resulted in prejudice to Defendants.  As a sanction, the Magistrate Judge recommended that that the Government be ordered to produce documents that it had withheld as privileged and/or work product, that Defendants were entitled to recover reasonable attorneys fees and costs, and that the Government must show cause why additional searching should not be required.  The District Court overruled objections to the order.

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Court Orders Broad Discovery of Class Members’ Social Media, Text Messages & Email

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

In this case involving allegations of sexual harassment, a hostile environment and retaliation, the court granted in part Defendant’s Motion to Compel and ordered broad discovery of class members’ social media, text messages and email.

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Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Nov. 8, 2012)

On November 8th, District Court Judge Andrew L. Carter, Jr. filed his long awaited decision in response to Plaintiffs’ Motion for Recusal or Disqualification of Magistrate Judge Andrew Peck.  In his short and to the point opinion, Judge Carter concluded that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.”  The court further found that “Magistrate Judge Peck’s conduct falls within proper bounds of judicial conduct” and that “[h]is denial of Plaintiffs’ recusal motion is consistent with the interests of judicial economy and the administration of justice.”

A full copy of the order is available here.

For Discovery Violations, Court Orders Retention of Outside Vendor to Collect Responsive Documents, Investigate Possible Spoliation

Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTBx), 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012)

In this case, the court concluded that Defendant failed to comply with its discovery obligations by 1) failing to conduct a reasonably diligent search, 2) improperly withholding responsive documents, and 3) failing to take adequate steps to ensure preservation.  Accordingly, the court ordered that an outside vendor be retained to search for and collect Defendant’s responsive documents and to determine if any documents had been permanently deleted, at Defendant’s expense.  The court also ordered monetary sanctions.

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Cloud Considerations: E-Discovery

By: Katie Taylor, K&L Gates

SaaS, PaaS and data hosting providers stress the significant efficiencies to be gained from cloud computing when marketing their services.  Depending on the cloud computing system you are considering, however, a number of features may have a significant impact on your company’s ability to comply with electronic discovery obligations should it be sued or subpoenaed.

To read the entire article, click here.

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