Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

 

1
Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel
2
Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed
3
In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference
4
Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)
5
e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims
6
Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015
7
Federal Rule Changes Affect e-Discovery – Are You Ready This Time?
8
Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”
9
“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”
10
Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law

Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel

Matthew Enter., Inc. v. Chrysler Grp., LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015)

In this case, the court declined to compel production from Plaintiff’s employees’ personal email accounts because Plaintiff did not have control of the emails for purposes of discovery.  As to the contents of Plaintiff’s “customer communications database” maintained by a third party vendor, however, the court found that Plaintiff did have control of the ESI, as evidenced by the prior production of certain data at Plaintiff’s request.

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Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed

Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)

In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.

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In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference

United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)

In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation.  Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted.  Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.

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Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)

The e-Discovery Analysis & Technology (e-DAT) Group at K&L Gates is proud to announce that the Electronic Discovery Law blog has again been named to the ABA Journal’s Blawg 100 list. Thanks to all who nominated us and to all of our readers for their ongoing interest in the important issues affecting electronic discovery!

Click here to read more about the ABA Journal’s Blawg 100 list and to see this year’s list of excellent legal blogs and 2015 Hall of Fame inductees.

Blawg100WebBadge

e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims

Rules of the U.S. Court of International Trade
Rule 16 Postassignment Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

United States Tax Court Rules of Practice and Procedure
Rule 70 General Provisions
Rule 71 Interrogatories
Rule 72 Production of Documents, Electronically Stored Information, and Things
Rule 82 Depositions Before Commencement of Case
Rule 103 Protective Orders
Rule 104 Enforcement Action and Sanctions
Rule 147 Subpoenas

Rules of the United States Court of Federal Claims 
Rule 16 Pretrial Conferences; Scheduling; Management
Rule 26 Duty to Disclose; General Provisions Governing Discovery
Rule 33 Interrogatories to Parties
Rule 34 Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
Rule 37 Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
Rule 45 Subpoena

Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015

The wait is over.  Amendments to the Federal Rules of Civil Procedure are effective today.

The 2015 amendments to the Federal Rules of Civil Procedure are significant and will have a direct impact on the day to day practice of law, particularly discovery.  If you’ve been putting off your review of the amendments, the time for action is now!  Take a few minutes (or a few hours) to review these important amendments and/or attend one of K&L Gates’ two live events to learn more! (Live events are also available via webinar.)

CLICK HERE for an overview of the rules amendments package.

To register for K&L Gates’ complimentary CLE, “Federal Rule Changes Affect e-Discovery – Are You Ready This Time?” follow the links below:

  • CLICK HERE to attend LIVE! in Seattle: Dec. 1, 2015, 1:30 PM -5:30 (with post-program reception)
  • CLICK HERE to attend LIVE! in Pittsburgh: Dec. 3, 2015, 8:30 AM-12:15
  • Can’t Attend in Person? Email Allison Peterson (allison.peterson@klgates.com) to attend via Webinar. Log-in instructions will be emailed to you.

Federal Rule Changes Affect e-Discovery – Are You Ready This Time?

Learn Strategies for Litigating in the New Framework

Join Us For a Complimentary 3 Hour CLE

Important updates and revisions to the Federal Rules of Civil Procedure take effect on December 1, 2015, absent (unlikely) action by Congress. These changes will undoubtedly have a substantial effect on litigation (and pre-litigation) strategies and practice, particularly with regard to discovery. Issues addressed by the amendments include — among others — the scope of discovery, responses and objections to requests for production, and preservation (or loss) of electronically stored information.

Please join us for a lively and informative strategic discussion of the amendments, the ways they will affect your future practice and cases, and the steps you can take to address and embrace the new paradigms shaped by these changes. In-house counsel will join members of the K&L Gates global e-Discovery Analysis & Technology practice group to address the significance of these rule changes, their ethical implications for legal practitioners, the opportunities for advocacy afforded by the rules’ increased attention to proportionality, and the practical effects of these rule changes on record preservation practices.

Live programs will take place on December 1st in Seattle, WA and December 3rd in Pittsburgh, PA.  These programs will also be available via webinar.

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Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude “Plaintiff’s use of any argument or evidence of alleged spoliation” where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s “old computer” and to hire a third party to search for and recover relevant emails and documents from the same.  Thus, the court found that Plaintiff failed to establish prejudice.

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“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

Cook v. Tarbert Logging, Inc., —P.3d—, 2015 WL 5771329 (Wash. Ct. App. Oct. 1, 2015)

In this case, Plaintiffs failed to preserve the pickup truck involved in the at-issue accident, including the airbag control monitor (ACM), despite first allowing their own expert to inspect it.  To address the loss, Plaintiffs’ expert was precluded from testifying as to his opinion regarding the drivers’ speed and ultimately was not called as a witness.  Defendants were allowed to present evidence regarding Plaintiffs’ failure to preserve and to inform the jury of the expert’s inspection.  This created the false inference that the expert’s conclusions were unfavorable to the plaintiffs, which the plaintiffs were not permitted to rebut (the expert had in fact concluded that Plaintiff had been travelling at a “slower and safer speed” than the defendant at the time of the accident).  On appeal, the court determined that the trial court “erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”  The court also concluded that the trial court abused its discretion by allowing Defendants to tell the jury about the expert and his inspection without also allowing rebuttal from the plaintiffs.  Accordingly, the court reversed the case in part and remanded for a new trial.

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Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law

By Nicolas Roggel, Dr. Friederike Gräfin von Brühl, K&L Gates, Berlin

THE ISSUE

Following the ECJ’s decision in the “Schrems” case which has invalidated the Safe Harbor framework (click here for our firm’s recent alert on this matter) multinational corporations may now face profound privacy law related compliance issues in a multitude of jurisdictions.

In the Schrems decision, the ECJ held that the widespread practice of U.S. companies to self-certify under the Safe Harbor standards in order to legitimize data transfers from EU companies to U.S. companies does not provide for an adequate level of data protection. As a result the court held that the Safe Harbor principles are invalid and thus shattered the legal basis for the data transfer from countless EU entities to U.S. entities. The ECJ substantiates its decision with the fact that all personal data stored in the United States is subject to almost unrestricted and unpredictable access by U.S. authorities, that the data subject has no legal way to prevent this access, and that subordination under the Safe Harbor statute does not mitigate this threat. The ECJ considers this situation to be a major and unjustifiable violation of EU citizens’ fundamental rights and requires local data protection authorities to assess the admissibility of data transfers without relying on the subordination of U.S. companies under the Safe Harbor regime.

Click here to read the full article.

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