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Electronic Discovery Law Blog

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

Proposed Amendments to Federal Rules of Civil Procedure to be Published for Public Comment

Posted in FEDERAL RULES AMENDMENTS

At its June meeting, the Committee on Rules of Practice and Procedure (“The Standing Committee”) unanimously approved for publication and public comment proposed amendments to the Federal Rules of Civil Procedure.  The proposed amendments would affect rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37.  A proposed change to Rule 84 (namely, its abrogation) may also be published for public comment.  Many of the amendments are quite far reaching and would have a substantial impact, particularly on discovery.

For more information, Click Here to read the May Report of the Advisory Committee on Civil Rules, where all proposed amendments are discussed in detail, and check back here on August 15th for a link to the proposed amendments as published for public comment.

E-discovery’s Trailblazers

Posted in NEWS & UPDATES

Eleven people —lawyers and nonlawyers — who helped create the industry.

Published by: The American Lawyer, July 29, 2013

Clearly it took a village to define and create today’s electronic discovery industry.  Ever since the sector’s early days, marked by the litigation following the Exxon Valdez oil spill in 1989, a series of lawyers, consultants, archivists, and judges have each played key roles in outlining processes, setting standards, defining the scope of e-discovery, and anticipating future trends.  Some, like K&L Gates partner Martha Dawson and U.S. District Court judge Shira Scheindlin, were early and vocal advocates of a robust role for e-discovery.  Others, like Jason R. Baron of the U.S. National Archives and Records Administration, U.S. Magistrate Judge Andrew Peck, and U.S. District Court Judge Paul Grimm, focus on narrowing the scope and improving the efficiency and cost-effectiveness of e-discovery requests.  Another group dived deep into the long process of creating uniform standards and procedures for e-discovery:  This is a diverse group, including such people as consultants George Socha and Tom Gelbmann, Sedona Conference founder Richard Braman, and U.S. District Court Judge Lee Rosenthal, who chaired the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedures during a crucial period beginning in 2003.

PRESENT AT THE CREATION
By Alan Cohen

They come from different backgrounds. Some are lawyers, some are technology experts, and some are a little of both.  These are our picks for six of the most important e-discovery trailblazers.

A FRONT-ROW SEAT
By Lisa Holton

Federal judges were among the first to see the sweeping changes that electronic discovery has brought to many areas of the law.  These five judges have not only set the stage in procedure and case law, but have become teachers, writers, activists, and ongoing critics of this rapidly changing industry.

Click here for links to the full articles.

Citing the Lack of a Clear Distinction between the Two Tiers of Discovery, Court Adopts “Practical Approach” for Addressing Disputes over Scope

Posted in CASE SUMMARIES

DCP Midstream LP v. Anadarko Petroleum Corp., —P.3d—, 2013 WL 3225846 (Colo. June 24, 2013)

In this breach of contract case, the Colorado Supreme Court addressed the court’s role in managing the scope of discovery under Colorado Rule of Civil Procedure 26(b)(1)—which was amended in 2002 “to conform to its federal counterpart.”  The court concluded that “when a scope objection is raised, C.R.C.P. 26(b) requires the trial court to take an active role managing discovery and to determine the appropriate scope of discovery in light of the reasonable needs of the case,” and held that “to resolve a dispute regarding the proper scope of discovery in a particular case, the trial court should, at a minimum, consider the cost-benefit and proportionality factors set forth in C.R.C.P. 26(b)(2)(F).” 

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Stored Communications Act Does Not Apply to Unauthorized Access to Previously Opened Emails

Posted in CASE SUMMARIES

Lazette v. Kulmatycki, —F. Supp. 2d—, 2013 WL 2455937 (N.D. Ohio June 5, 2013)

When Plaintiff’s employment ended and she returned her company-issued Blackberry, she believed that she had deleted her personal email account.  She was mistaken.  Thereafter, her former supervisor, without her knowledge or authorization, proceeded to access and read her personal emails—48,000 of them—during the ensuing eighteen months. Plaintiff also believed that he shared the contents of those emails with others.  Plaintiff sued her former supervisor and her former employer for violation of the Stored Communications Act (“SCA”), among other things.  Defendants sought dismissal of Plaintiff’s SCA claims.  The court held that Plaintiff could not prevail on claims based on access to emails she had previously opened but not deleted, but declined to dismiss claims based on those emails that were accessed by the former supervisor before being opened by the plaintiff.

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No Sanctions for Routine Deletion of Text Messages “so as not to unduly encumber” Cell Phones

Posted in CASE SUMMARIES

PTSI, Inc. v. Haley,—A.3d—, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)

Plaintiff sued its former employees after they opened a competing sports training facility.  In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages.  The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions.  On appeal, the appellate court found no abuse of discretion and affirmed the order.

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Da Silva Moore: Plaintiffs Petition for Writ of Certiorari on Question of Recusal

Posted in NEWS & UPDATES

It was reported this week that the Plaintiffs in this case have filed a Petition for a Writ of Certiorari with the United States Supreme Court seeking an answer to the question:  “Should a court of appeals review a judge’s denial of a motion to recuse de novo or for an abuse of discretion?”  For those who don’t recall, the plaintiffs in this case sought Magistrate Judge Peck’s recusal following his approval of Defendant’s predictive coding protocol.  That motion was denied, and the denial was later affirmed by both the District Court and the Second Circuit Court of Appeals.  Now, Plaintiffs argue that the standard of review applied by the Second Circuit was too deferential and that the issue should have been reviewed “de novo.”

For more information on this interesting development, click here to read Victor Li’s article “ ‘Da Silva Moore’ Goes to Washington,” published yesterday by Law Technology News.

Although too numerous to be listed, more postings regarding this case can be accessed on this blog by searching “Da Silva Moore” in the search box (on the left of your screen).

No Sanctions for Deletion of Email Folder belonging to “Perhaps the Key Witness” Absent Evidence of Prejudice

Posted in CASE SUMMARIES

Sekisui Am. Corp. v. Hart, No. 12 Civ. 3479(SAS)(FM), 2013 WL 2951924 (S.D.N.Y. June 10, 2013)

In this case, the court considered Plaintiff’s “at least” negligent deletion of “the entire active email folder of an important witness—perhaps the key witness—at a time when [it] obviously knew that it might commence a lawsuit,” but declined to impose the requested adverse inference—or any sanction—absent a sufficient showing that “relevant information potentially helpful to [the defendants] [wa]s no longer available.”

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When is an Adverse Inference Instruction Not a Sanction?

Posted in CASE SUMMARIES

Mali v. Fed. Ins. Co., —F.3d—, 2013 WL 2631369 (2d Cir. June 13, 2013)

Here, the Second Circuit addressed the difference between an adverse inference instruction as a sanction and an instruction “that simply explains to the jurors inferences they are free to draw in considering circumstantial evidence” and determined that the at-issue instruction was not a sanction and that the trial court did not err.  The instruction permitted jurors to infer that an unproduced photograph was unfavorable to Plaintiffs, provided they believed that the photograph was in the plaintiffs’ possession and that the non-production was not satisfactorily explained.

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Conducting “Traditional Relevance Analysis,” Court Denies Full Access to Plaintiff’s Social Networking Accounts

Posted in CASE SUMMARIES

Giacchetto v. Patchogue-Medford Union Free School Dist., No. CV 11-6323(ADS)(AKT), 2013 WL 2897054 (E.D.N.Y. May 6, 2013)

In this case, the court conducted a “traditional relevance analysis” to assess Defendant’s request for broad access to Plaintiff’s social networking accounts and concluded that only limited discovery was appropriate.  Specifically, the court concluded that “unfettered access to Plaintiff’s social networking history will not be permitted simply because Plaintiff has a claim for emotional distress damages.”  Thus, the court ordered Plaintiff’s counsel to review Plaintiff’s postings and to produce those determined to be relevant, “keeping in mind the broad scope of discovery contemplated under Rule 26.”

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No Sanctions For Failure to Preserve Where Deleted Call Recordings “would not have been supportive of Plaintiff’s claim”

Posted in CASE SUMMARIES

Cottle-Banks v. Cox Commc’ns, Inc., No. 10cv2133-GPC (WVG), 2013 WL 2244333 (S.D. Cal. May 21, 2013)

In this putative class action, Plaintiff sought sanctions for Defendant’s failure to preserve potentially relevant customer call recordings.  Although the court found that Defendant was negligent in its failure to preserve (and thus had the requisite “culpable state of mind”), no sanctions were ordered because the court concluded that the call recordings would not have supported Plaintiff’s case.

In September 2010, Plaintiff filed her initial complaint alleging Defendant’s violation of the federal Cable Act by charging rental fees for cable converter boxes and/or remote controls that class members “did not affirmatively request by name.”  In July 2011, Plaintiff filed an amended complaint, after her initial complaint was dismissed.

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