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Electronic Discovery Law Blog

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

Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems


Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014)

While the preservation, review, and production of ESI often involves procedures and techniques which do not have direct parallels to discovery involving paper documents, the underlying principles governing discovery do not change just because ESI is involved. Counsel still have a duty (perhaps even a heightened duty) to cooperate in the discovery process; to be transparent about what information exists, how it is maintained, and whether and how it can be retrieved; and, above all, to exercise sufficient diligence (even when venturing into unfamiliar territory like ESI) to ensure that all representations made to opposing parties and to the Court are truthful and are based upon a reasonable investigation of the facts. As another Judge of this Court has observed, “trial counsel must exercise some degree of oversight to ensure that their client’s employees are acting competently, diligently and ethically in order to fulfill their responsibility to the Court,” Bratka v. Anheuser–Busch Co., 164 F.R.D. 448, 461 (S.D.Ohio 1995) (Graham, J.). That holds true whether the bulk of the information relevant to discovery is ESI or resides in paper documents.

In this age discrimination case, the court determined that both defendant and counsel failed to uphold their discovery obligations, including by failing to timely produce ESI and by failing to make timely efforts to preserve.  The court observed, however, that the “significant problems arose in this case for one overriding reason: counsel fell far short of their obligation to examine critically the information which Tellermate gave them about the existence and availability of documents requested by the Browns.”  “As a result, they did not produce documents in a timely fashion, made unfounded arguments about their ability and obligation to do so, caused the Browns to file discovery motions to address these issues, and, eventually, produced a key set of documents which were never subject to proper preservation.”  Accordingly, the court ordered that defendant was precluded from “using any evidence which would tend to show that the Browns were terminated for performance-related reasons” and also ordered monetary sanctions, to be paid jointly by defendant and counsel. Continue Reading

Supreme Court of Texas Clarifies Standards Governing Spoliation, Limits Imposition of Spoliation Instructions and the Presentation of Evidence of Spoliation to the Jury


Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013)

In this case, the Supreme Court of Texas “enunciate[d] with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury” and held that such an instruction is only appropriate when the destruction of evidence was intentional or deprived the opposing party of “any meaningful ability to present a claim or defense.”  The court also concluded that “[s]poliation findings—and their related sanctions—are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit” and that “[a]ccordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit.”  Applying the newly-articulated standards to the facts of the case before it, the court held that “imposition of the severe sanction of a spoliation instruction was an abuse of discretion” and that the trial court erred “in admitting evidence of the circumstances of the spoliating conduct.”  Accordingly, the judgment of the court of appeals was reversed, and the case was remanded for a new trial. Continue Reading

Sale of Seized Computer at Public Auction did not Waive Privilege where Steps were Taken to Prevent Disclosure


Kyko Global Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034 MJP, 2014 WL 2694236 (W.D. Wash. June 13, 2014)

In this case, the court addressed the question of whether privilege was waived by the sale of a seized computer at public auction.  Balancing the relevant factors under Washington law, the court determined that the prior owner’s steps to protect her information by reformatting the computer and installing a new operating system coupled with defendants’ prompt efforts to remedy the error and considerations of fairness weighed against waiver. Continue Reading

Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure


First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)

In this case, the court found that privilege was waived where First Technology Capital, Inc. (“FTC”*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.  The court’s determination that counsel’s efforts were unreasonable was based, in part, on the speed of the alleged page-by-page review (each document received, on average, only 9.84 seconds of review) and FTC’s failure to produce a privilege log, among other things. Continue Reading

Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure


Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.  The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule).  Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.

The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September. 

Court Rejects Unilateral Decision to Apply Predictive Coding to Keyword Search Hits, Orders Production of All Hits Pursuant to Clawback Order as Stipulated


Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014)

In this case, the parties agreed upon an e-discovery protocol which was memorialized in a court order.  Shortly into its review, Plaintiff determined that the agreed-upon methodology (manual review of search term hits) would be too time consuming and expensive and decided that it would instead apply predictive coding to those documents identified by the agreed-upon search terms—which it began doing without consulting the requesting party or the court.  The requesting party, FDIC-R (FDIC as Receiver), opposed Plaintiff’s unilateral action for several reasons, including the lack of transparency around the predictive coding methodology employed and that the predictive coding protocol did not comport with the recommended “best practices” for the chosen software program.  Ultimately, despite expressing support for the use of predictive coding in discovery, the court ordered Plaintiff to produce all of the documents identified by the agreed-upon keywords, subject to a clawback order, where such a production had been memorialized as an acceptable option in the stipulated order and where Plaintiff had abandoned the option it originally selected (manual review).  The court also noted the FDIC-R’s commitment to devoting the necessary resources to review the documents quickly and thus allow discovery—which had been “stalled for many months”—to move forward. Continue Reading

“Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals.”


In re Domestic Drywall Antitrust Litig., —F. Supp. 2d—, 2014 WL 1909260 (E.D. Pa. May 12, 2014)

The issue presented is whether Plaintiffs must provide facts supporting Plaintiffs’ allegations—a frequent issue in antitrust litigation. The Court concludes, because of Plaintiffs’ counsel’s felicitous access to electronically stored information, that Plaintiffs must provide a pretrial statement setting forth the facts they now have, and Defendants must subsequently reciprocate.

Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals. Continue Reading

Court Orders Forensic Examination for Inadequate Preservation & Collection, Confirms “Basic Rule” that Custodians must be Consulted for Input on Search Terms


Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014); No. 12-24356-CIV, 2014 WL 1047748 (S.D. Fla. Mar. 18, 2014)

In this pair of opinions, the court addressed the obligations of client and counsel with regard to the preservation and collection of electronically stored information and the obligation of counsel to obtain input from relevant custodians when crafting search terms.  In the first opinion, in light of deficient efforts to preserve and collect potentially relevant information, the court ordered an extensive forensic examination of Plaintiff’s data repositories by a neutral third party and crafted a protocol for the production of information identified by the search terms applied.  In the second opinion, the court confirmed the “basic rule” that “outside counsel ‘must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use’” and ordered Counsel to “obtain search word input from all the ESI custodians” and to pay a portion of the attorney’s fees awarded, with his firm to pay the rest.  The court was specifically critical of Plaintiff’s counsel’s communication (or lack thereof) with opposing counsel regarding how search terms were generated and whether Plaintiff’s custodians had been consulted, which caused Defendant to file its motion to compel. Continue Reading

Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants


United States v. Shabudin, No. 11-cr-00664-JSW-1 (NJV), 2014 WL 1379717 (N.D. Cal. Apr. 8, 2014)

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the “Database”) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. Continue Reading

Proposed Rule 37(e) Draft Committee Note Now Available


As previously discussed on this blog, proposed amendments to the Federal Rules of Civil Procedure were recently approved by the Advisory Committee on Civil Rules for submission to the Committee on Rules of Practice and Procedure (the “Standing Committee”).  At the time of approval, the Committee Note for Proposed Rule 37(e) remained “under construction.”  The proposed note has now been drafted, however, and was published in the Agenda Book for the Standing Committee’s May meeting, to be held in Washington, D.C. on May 29-30.

A copy of the Agenda Book is available here.