Electronic Discovery Law

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

 

1
“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”
2
Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law
3
U.S.-EU Safe Harbor Invalidated. What Next?
4
Court Approves Use of Search Terms to Identify Materials for Preservation
5
Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
6
Upcoming Events! – Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
7
Court Compels Restoration and Production of Emails from Backup Tapes
8
“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”
9
For Over-designation of “Highly Confidential” Documents, Court Orders Expedited Re-Review, Attorney’s Fees
10
“[R]equiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”

“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.

U.S.-EU Safe Harbor Invalidated. What Next?

By: Martin Stern and Samuel Castic

On October 6, the U.S.-EU Safe Harbor was invalidated in a European Court of Justice decision in Schrems v. Data Protection Authority. Thousands of companies have certified as compliant with the Safe Harbor framework, and may need to reevaluate the legal basis for transfers of personal data from the EU to the U.S.

Learn more in our alert “Did the ECJ Kill the Safe Harbor Framework on E.U.-U.S. Data Transfers?”, and view a webinar on this topic here.

Court Approves Use of Search Terms to Identify Materials for Preservation

You v. Japan, No. C 15-03257 WHA, 2015 WL 5542539 (N.D. Cal. Sept. 16, 2015)

In this case, the court entered an order requiring preservation, including “interdiction of any document-destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.”  In the course of its business, one defendant, the publisher of a daily newspaper, employed a proprietary application “used for laying out each edition of the newspaper.”  The application retained a “back catalog” of 90 days.  In response to the court’s order, the defendant alleged that retention of the application’s contents for longer than 90 days could “slow down the system or cause it to crash” and that although it could install a new storage system, it would cost $18 million and could take up to eight months.  Accordingly Defendant sought permission to employ certain search terms to be run across the application twice monthly to identify articles to be preserved.  Defendant alleged that it had “already run several searches using [the proposed] terms and found they yielded duplicative results,” but indicated it would use the terms “out of an abundance of caution.”  Defendant further explained that because the proposal “would not cease ‘all ongoing erasures of electronically-stored material,’” it sought court approval for its proposed method.

Plaintiffs opposed the proposal and argued that it could lead to the destruction of “evidence of [Defendant’s] state of mind in selecting and editing its articles” which could be relevant to Plaintiffs’ claims of defamation and intentional infliction of emotional distress.  Plaintiffs also identified an additional search term that the defendant had not proposed.

With the addition of Plaintiffs’ proposed term, the court found Defendant’s proposal “sufficiently broad” to identify and preserve potentially relevant articles and granted permission for Defendant’s proposed preservation protocol.

A copy of the court’s order is available here.

Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?

An Overview of the Rules, History and Commentary

Absent congressional action to reject, modify or defer proposed amendments approved by the U.S. Supreme Court earlier this year, amendments to rules 1, 4, 16, 26, 30, 31, 33, 34, 37, 55, and 84 of the Federal Rules of Civil Procedure will become effective on December 1, 2015.  Getting a head start on thinking about how your litigation (and pre-litigation) strategies or practices may be affected by these important amendments is highly recommended.

Click here to access the full article.

 

Upcoming Events! – Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?

Learn Strategies for Litigating in the Expected New Framework 

Join Us for a Complimentary 90 Minute CLE at one of several locations

  • Boston, October 20, 2015, 8:30-10AM
  • Chicago, October 22, 2015, 8:30-10AM
  • Dallas, November 5, 2015, 8:30-10AM

AND COMING SOON — Additional information about CLE programs in Seattle and Pittsburgh the first week of December

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Court Compels Restoration and Production of Emails from Backup Tapes

United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726 (D. Nev. Aug. 25, 2015)

In this case, the court addressed Defendants’ claim that emails stored on backup tapes were not reasonably accessible because of undue burden and cost.  Reasoning that “[a]t bottom there will be a burden or a cost, but not both,” the court found that Defendants failed to show undue burden because of their stated intention to rely on a third party vendor, thus reducing the burden of in-house production by adding some cost and that, after disallowing consideration of the cost of document review and storage, the estimated $136,000 for restoration was not sufficient to render the emails inaccessible.  In so finding, the court reasoned that Defendants must bear some responsibility for the consequences of the decision to use an “archival/backup solution that did not maintain ESI in an indexed or otherwise searchable manner.”  The court also found good cause to compel production and that cost shifting was not warranted.

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“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”

New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, —Fed. Cl.—, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015)

In this breach of contract case, Plaintiff sought an order requiring Defendant to “redo its searches for responsive documents according to parameters to be agreed upon by the parties” after it began to suspect that Defendant’s search for responsive materials was insufficient.  The court found that Defendant “did not put into place a systematic, reliable plan to find and produce all relevant documents in this case” and indicated that the record did not “allow the court to conclude that a thorough and reliable search was conducted.”  Accordingly, the court ordered the parties to work together to identify a list of custodians, search protocols and search terms to be utilized by the defendant and required the defendant to maintain a careful record of its search efforts and to produce any responsive documents.

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For Over-designation of “Highly Confidential” Documents, Court Orders Expedited Re-Review, Attorney’s Fees

Procaps S.A. v. Patheon Inc., No. 12-24356-CIV-GOODMAN, 2015 WL 4430955 (S.D. Fla. July 20, 2015)

In this case, the court addressed Plaintiff’s designation of 95% of its forensically produced documents as “highly confidential” and, upon Defendant’s motion to compel Plaintiff to re-review and re-designate those documents, ordered that Defendant would be allowed to use all documents, regardless of their initial designation, unless the document was re-designated by the plaintiff in good faith within the short timeframe allowed by the court.  The court also ordered Plaintiff’s counsel to pay $25,000 in attorney’s fees.

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“[R]equiring each agency and thousands of officials to institute a litigation hold every time a party contemplates or even commences litigation against another agency would paralyze the State.”

Wandering Dago, Inc. v. N.Y. State Office of Gen. Servs., No. 1:13-CV-1053 (MAD/RFT), 2015 WL 3453321 (N.D.N.Y. May 29, 2015)

In this case, the court addressed “whether officials in one governmental agency and their Attorney can be sanctioned for the destruction of email(s), belonging to yet another governmental agency, via the New York State’s Email Retention Policy. Essentially, would such an occurrence constitute spoliation of evidence, and, if so, are sanctions warranted?” The court found the answer was “no.”

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