Archive: July 2013

1
E-discovery’s Trailblazers
2
Citing the Lack of a Clear Distinction between the Two Tiers of Discovery, Court Adopts “Practical Approach” for Addressing Disputes over Scope
3
Stored Communications Act Does Not Apply to Unauthorized Access to Previously Opened Emails
4
No Sanctions for Routine Deletion of Text Messages “so as not to unduly encumber” Cell Phones
5
Da Silva Moore: Plaintiffs Petition for Writ of Certiorari on Question of Recusal
6
No Sanctions for Deletion of Email Folder belonging to “Perhaps the Key Witness” Absent Evidence of Prejudice

E-discovery’s Trailblazers

Eleven people —lawyers and nonlawyers — who helped create the industry.

Published by: The American Lawyer, July 29, 2013

Clearly it took a village to define and create today’s electronic discovery industry.  Ever since the sector’s early days, marked by the litigation following the Exxon Valdez oil spill in 1989, a series of lawyers, consultants, archivists, and judges have each played key roles in outlining processes, setting standards, defining the scope of e-discovery, and anticipating future trends.  Some, like K&L Gates partner Martha Dawson and U.S. District Court judge Shira Scheindlin, were early and vocal advocates of a robust role for e-discovery.  Others, like Jason R. Baron of the U.S. National Archives and Records Administration, U.S. Magistrate Judge Andrew Peck, and U.S. District Court Judge Paul Grimm, focus on narrowing the scope and improving the efficiency and cost-effectiveness of e-discovery requests.  Another group dived deep into the long process of creating uniform standards and procedures for e-discovery:  This is a diverse group, including such people as consultants George Socha and Tom Gelbmann, Sedona Conference founder Richard Braman, and U.S. District Court Judge Lee Rosenthal, who chaired the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedures during a crucial period beginning in 2003.

PRESENT AT THE CREATION
By Alan Cohen

They come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both.  These are our picks for six of the most important e-discovery trailblazers.

A FRONT-ROW SEAT
By Lisa Holton

Federal judges were among the first to see the sweeping changes that electronic discovery has brought to many areas of the law.  These five judges have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.

Click here for links to the full articles.

Citing the Lack of a Clear Distinction between the Two Tiers of Discovery, Court Adopts “Practical Approach” for Addressing Disputes over Scope

DCP Midstream LP v. Anadarko Petroleum Corp., —P.3d—, 2013 WL 3225846 (Colo. June 24, 2013)

In this breach of contract case, the Colorado Supreme Court addressed the court’s role in managing the scope of discovery under Colorado Rule of Civil Procedure 26(b)(1)—which was amended in 2002 “to conform to its federal counterpart.”  The court concluded that “when a scope objection is raised, C.R.C.P. 26(b) requires the trial court to take an active role managing discovery and to determine the appropriate scope of discovery in light of the reasonable needs of the case,” and held that “to resolve a dispute regarding the proper scope of discovery in a particular case, the trial court should, at a minimum, consider the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).” 

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Stored Communications Act Does Not Apply to Unauthorized Access to Previously Opened Emails

Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013)

When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account.  She was mistaken.  Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during the ensuing eighteen months. Plaintiff also believed that he shared the contents of those emails with others.  Plaintiff sued her former supervisor and her former employer for violation of the Stored Communications Act (“SCA”), among other things.  Defendants sought dismissal of Plaintiff’s SCA claims.  The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.

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No Sanctions for Routine Deletion of Text Messages “so as not to unduly encumber” Cell Phones

PTSI, Inc. v. Haley,—A.3d—, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)

Plaintiff sued its former employees after they opened a competing sports training facility.  In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages.  The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions.  On appeal, the appellate court found no abuse of discretion and affirmed the order.

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Da Silva Moore: Plaintiffs Petition for Writ of Certiorari on Question of Recusal

It was reported this week that the Plaintiffs in this case have filed a Petition for a Writ of Certiorari with the United States Supreme Court seeking an answer to the question:  “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?”  For those who don’t recall, the plaintiffs in this case sought Magistrate Judge Peck’s recusal following his approval of Defendant’s predictive coding protocol.  That motion was denied, and the denial was later affirmed by both the District Court and the Second Circuit Court of Appeals.  Now, Plaintiffs argue that the standard of review applied by the Second Circuit was too deferential and that the issue should have been reviewed “de novo.”

For more information on this interesting development, click here to read Victor Li’s article “ ‘Da Silva Moore’ Goes to Washington,” published yesterday by Law Technology News.

Although too numerous to be listed, more postings regarding this case can be accessed on this blog by searching “Da Silva Moore” in the search box (on the left of your screen).

No Sanctions for Deletion of Email Folder belonging to “Perhaps the Key Witness” Absent Evidence of Prejudice

Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479(SAS)(FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013)

In this case, the court considered Plaintiff’s “at least” negligent deletion of “the entire active email folder of an important witness—perhaps the key witness—at a time when [it] obviously knew that it might commence a lawsuit,” but declined to impose the requested adverse inference—or any sanction—absent a sufficient showing that “relevant information potentially helpful to [the defendants] [wa]s no longer available.”

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