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Electronic Discovery Law Blog

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

Citing Ethical Implications, Court Denies Motion to Appoint Coordinating Discovery Attorney in Criminal Case


United States v. Hernandez, No. 14 Cr. 499(KBF), 2014 WL 4510266 (S.D.N.Y. Sept. 12, 2014)

Citing ethical implications, the District Court in this criminal case denied nine defendants’ motion to “appoint a tenth attorney to act as a Coordinating Discovery Attorney (“CDA”) on behalf of all nine defendants.” The Court concluded that “[a] vendor with an arms-length contact is clearly preferable” but also indicated that if a CDA was sought, “a stipulation or legally binding document should be entered” which makes clear the responsibilities of the CDA and of defense counsel. Continue Reading

Court Approves Use of Predictive Coding Despite Objection to “Unproven Technology”


Dynamo Holdings Ltd. P’ship v. Comm’r of Internal Revenue, Nos. 2685-11, 8393-12 (T.C. Sept. 17, 2014)

In this case, the court approved petitioners’  (Dynamo Holdings Ltd. Partnership et. al.) use of predictive coding to identify potentially responsive and privileged data contained on two backup tapes, despite respondent’s  (Commissioner of Internal Revenue) objection that the technology was “unproven.” Continue Reading

Applying Proportionality, Court Denies Motion to Compel Additional Search for ESI, Reminds Parties of Other Discovery Tools


United States v. Univ. Nebraska at Kearney, No. 4:11CV3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014)

In this housing discrimination case, the parties disagreed regarding the proper scope of discovery and plaintiff’s proposed search terms.  Plaintiff sought the production of ESI related to requests for accommodation of a disability in every context (e.g., housing, academics, employment, etc.) while defendants sought to limit production to the “housing” or “residential” contexts.  The court found that plaintiff’s request was overly broad on its face and that the additional costs required by the requested searching would “far outweigh” anything that could be gained.  Moreover, the court agreed with defendants that even with a clawback order, review of potentially responsive documents would be required to protect students’ privacy interests.  Finally, in response to claims that defendants’ proposed search would miss responsive ESI, the court reasoned that “[s]earching for ESI is only one discovery tool,” and suggested that “[s]tandard document production requests, interrogatories, and depositions should suffice – and with far less cost and delay.” Continue Reading

Another Milestone Passes: Judicial Conference Approves Federal Civil Rules Amendments


As reported by the National Law Journal (subscription required), the Judicial Conference has approved proposed changes to the Federal Rules of Civil Procedure.  No revisions to the proposals were reported.  The proposals will now go before the United States Supreme Court for review and, if approved, will take effect on December 1, 2015, absent any action by Congress to revise or reject the amendments.

The rules to be affected by the pending amendments include rules 1, 4, 16, 26, 30, 31, 33 and 34 (collectively known as the “Duke Rules Package”). The proposed amendments also include an entirely rewritten Rule 37(e) addressing preservation and sanctions.

For more information regarding specific proposed changes (including the proposed text of the rules), read the Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure, HERE.

Court Allows Plaintiff to “switch horses in midstream” and Use Predictive Coding to Review Documents Initially Screened with Search Terms


Bridgestone Americas, Inc. v. Int. Bus. Machs. Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014)

In this case, the court approved plaintiff’s request to use predictive coding in reviewing over two million documents, despite defendant’s objections that the request was an “unwarranted change in the original case management order” and that it would be unfair to allow the use of predictive coding “after an initial screening has been done with search terms.” Continue Reading

“The time to tap flexibility and creativity is during meet and confer, not after.” – Court Quashes Subpoena, Declines to Allow Plaintiff to Accept Prior Offer for Production


Boston Scientific Corp. v. Lee, No. 5:14-mc-80188-BLF-PSG, 2014 WL 3851157 (N.D. Cal. Aug. 4, 2014)

This case illustrates a recurring problem in all civil discovery, especially in intellectual property cases. A party demands the sun, moon and stars in a document request or interrogatory, refusing to give even a little bit. The meet and confer required by a court in advance of a motion is perfunctory at best, with no compromise whatsoever. But when the parties appear before the court, the recalcitrant party possesses newfound flexibility and a willingness to compromise. Think Eddie Haskell singing the Beaver’s praises to June Cleaver, only moments after giving him the business in private. Having considered the arguments, the court GRANTS Nevro’s motion to quash.

Boston Scientific Corp., 2014 WL 3851157, at *1.

In this case, the court addressed plaintiff’s subpoena seeking the production of a complete forensic image of two laptops utilized by the defendant, a former employee of the plaintiff, during his employment with plaintiff’s competitor, who the defendant began working for soon after resigning his position with the plaintiff.  Continue Reading

Looking back on Zubulake, 10 years later

Posted in NEWS & UPDATES

By Victor Li

This article was originally published in the ABA Journal, September, 2014.

When Laura Zubulake first brought her employment discrimination lawsuit to attorney James Batson in 2001, neither of them thought the case would make history. Neither did U.S. District Judge Shira Scheindlin, who presided over the case in the Southern District of New York.

In fact, Scheindlin has mentioned many times that Zubulake’s lawsuit seemed like a “garden-variety employment discrimination case.” Zubulake didn’t get a promotion she thought she had earned at the global financial services firm UBS Warburg, filed a complaint with human resources and suddenly found herself at odds with her bosses. It’s a fact pattern that could describe hundreds, or even thousands, of employment discrimination lawsuits currently pending throughout the United States.

Turns out, they couldn’t have been more wrong.

To read the full article, click here.

Sixth Circuit Addresses Spoliation, Preservation of Back-up Tapes, Affirms Denial of Sanctions


Automated Solutions Corp. v. Paragon Data Sys., Inc., —F.3d—, 2014 WL 2869286 (6th Cir. June 25, 2014)

In this copyright infringement case, the Sixth Circuit considered plaintiff’s arguments that the district court abused its discretion by denying plaintiff’s motion for spoliation sanctions related to defendant’s failure to preserve the information on a relevant hard drive and a relevant server and that the magistrate judge (and district court) improperly concluded that defendant’s back-up tapes were not subject to the duty to preserve, pursuant to the analysis set forth in Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003).  As to all issues, the circuit court affirmed the holdings of the district court. Continue Reading

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