Electronic Discovery Law

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

 

1
Magistrate Judge Applies Newly Amended Rule 37(e), Addresses Threshold Question of Whether At-Issue Emails were “Lost”
2
Court Concludes Defendant’s Request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”
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“The amendments may not look like a big deal at first glance, but they are.” – Chief Justice Roberts, 2015 Year-End Report on the Federal Judiciary
4
Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel
5
Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed
6
In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference
7
Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)
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e-Discovery Rules: US Court of International Trade, US Tax Court, US Court of Federal Claims
9
Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015
10
Federal Rule Changes Affect e-Discovery – Are You Ready This Time?

Magistrate Judge Applies Newly Amended Rule 37(e), Addresses Threshold Question of Whether At-Issue Emails were “Lost”

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016)

In this case, which raised “significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for the destruction of electronically stored information,” Magistrate Judge James C. Francis IV addressed Plaintiffs’ intentional alteration of relevant emails, as evidenced by the discovery of the original emails “which had been deleted, albeit not without leaving a digital imprint.” Finding that newly amended Rule 37 applied and that remedies were available pursuant to both subsections (e)(1) and (e)(2), the Magistrate Judge noted that “drastic sanctions are not mandatory” and ordered that Plaintiffs were precluded from relying on “their version” of the emails to demonstrate notice to Defendants of the use of the at-issue mark and that Plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

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Court Concludes Defendant’s Request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.”

Gilead Sciences, Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574 (N.D. Cal. Jan. 13, 2016)

In this case, the court addressed Defendant’s motion to compel production of additional discovery and, applying newly amended Fed. R. Civ. P. 26(b)(1), determined that Defendant’s request was “precisely the kind of disproportionate discovery that Rule 26—old or new—was intended to preclude.” Accordingly, the motion was denied.

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“The amendments may not look like a big deal at first glance, but they are.” – Chief Justice Roberts, 2015 Year-End Report on the Federal Judiciary

Chief Justice John Roberts has issued his annual report on the federal judiciary, focused primarily on the 2015 amendments to the Federal Rules of Civil Procedure, including a brief history of their development and discussion of their intended effects. Among other things, the report makes clear that the amendments “mark significant change, for both lawyers and judges, in the future conduct of civil trials.”  The report further counsels that:

The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding”—only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change.

A full copy of the report is available for download, here.

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.

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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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