Electronic Discovery Law

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

 

1
Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
2
Upcoming Events! – Federal Rule Changes Affecting E-Discovery Are Almost Here – Are You Ready This Time?
3
Court Compels Restoration and Production of Emails from Backup Tapes
4
“A proper search for discoverable documents requires careful planning, oversight, and monitoring by the party’s counsel.”
5
For Over-designation of “Highly Confidential” Documents, Court Orders Expedited Re-Review, Attorney’s Fees
6
“[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.”
7
It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery
8
For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods
9
In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations
10
Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection

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

Read More

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.

Read More

“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.

Read More

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.

Read More

“[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.”

Read More

It’s Official: State Bar of California Issues Formal Opinion Addressing Ethical Duties of Counsel in e-Discovery

Formal Opinion No. 2015-193 addresses the question: “What are an attorney’s ethical duties in the handling of discovery of electronically stored information?”

The opinion summarizes the answer as follows:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and become integrated with the practice of law. Attorney competence related to litigation generally requires, among other things, and at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, including the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a matter, and the nature of the ESI. Competency may require even a highly experienced attorney to seek assistance in some litigation matters involving ESI. An attorney lacking the required competence for e-discovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality.

To read the full opinion, click here.

For Reliance on Employees’ Self-Selection and Failure to Cooperate, Defendant Ordered to Produce Corporate Designee to Explain Retention Policies, Discovery Methods

Burd v. Ford Motor Co., No. 3:13-cv-20976, 2015 WL 4137915 (S.D. W. Va. July 8, 2015)

In this case, Defendant sought to quash Plaintiffs’ notice of deposition and entry of a protective order precluding Plaintiffs from deposing Defendant’s representative regarding Defendant’s document retention policies and practices and specific methodologies for identifying relevant information in the present case, including Defendant’s admitted reliance on custodian “self-selection.” Citing Plaintiffs’ concerns regarding the sufficiency of Defendant’s discovery efforts and Defendant’s refusal to cooperate and/or to disclose the search terms utilized by its custodians in their search efforts, the court denied Defendant’s requests for protection and ordered the defendant to produce a Rule 30(b)(6) witness to testify regarding “its document retention and destruction polices, and to supply details regarding the document search performed by [Defendant] to date.”

Read More

In Case You Missed It! Discovery of Social Media: Legal and Practical Considerations

Presenters: Desiree F. Moore, Daniel R. Miller, Ivan L. Ascott, & Bree Kelly

On July 16, 2015, a panel of attorneys from K&L Gates presented a webinar discussion addressing the discoverability and admissibility of social media content.  Topics discussed included:

  • the discoverability standards applied by courts with regard to social media content;
  • the likely effects of the anticipated amendments to the Federal Rules of Civil Procedure on such standards;
  • the relevance of the federal Stored Communications Act to discovery of information on social media;
  • the issues involved in preserving, collecting, searching, reviewing, and producing information from social media; and
  • the considerations pertinent to admission of social media content as evidence.

To download the presentation slides or to view and listen to the webinar, click here.

Noting Reliance Solely on Cost of Discovery, Court Rejects Proportionality Objection

Cargill Meat Solutions Corp. v. Premium Beef Feeders, LLC, No. 13-cv-1168-EFM-TJJ, 2015 WL 3937410 (D. Kan. June 26, 2015)

In this case the court addressed Defendants’ motion to compel and Plaintiff’s objection to discovery based on proportionality. Concluding that Plaintiff failed to adequately establish the alleged burden of the requested discovery, the court granted the motion to compel.

Read More

Copyright © 2016, K&L Gates LLP. All Rights Reserved.