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Electronic Discovery Law Blog

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

Advisory Committee Approves Proposed Amendments to Civil Rules, Next Stop Standing Committee!


As was reported on this blog just last week, the Advisory Committee on Civil Rules met on April 10th and 11th to review proposed amendments to the Rules of Civil Procedure, including recommended changes to those proposed amendments as published for public comment.  On the first day of meetings, the Advisory Committee unanimously approved proposed amendments to Rules 1, 4, 16, 26, and 34, including the Duke Subcommittee’s recommendations as outlined in the Advisory Committee’s Agenda Book (discussed in a prior post and available here).  As approved by the Advisory Committee, the amendments would, among other things, narrow the scope of discovery by eliminating discovery of information relevant to the “subject matter involved in the action”; move considerations of proportionality into Rule 26(b)(1); shorten the time for service under Rule 4(m); add the preservation of ESI and ER 502 agreements to the permitted contents of a Rule 16 scheduling order; modify the requirements for responses to Rule 34 requests for production; and allow early delivery of Rule 34 requests prior to parties’ Rule 26(f) conference.  The proposed amendments as adopted will now be submitted to the Committee on Rules of Practice and Procedure (“the Standing Committee”) for its review and potential approval.

On the second day of meetings, the Advisory Committee took up proposed amendments to Rule 37(e).  As was previously discussed on this blog, the Discovery Subcommittee to the Advisory Committee had recommended significant changes to the version of the proposed rule which was published for public comment.  The proposed amendments to Rule 37(e) underwent further revision, however, even as the meeting was ongoing, and a final version of the proposed amended rule was presented for the consideration of the full Advisory Committee on Friday morning.  Continue Reading

Rule 34(b)(2)(E)(i) “Documents” Do Not Include ESI, Requirement to Produce in the Usual Course of Business or to Label to Correspond to Categories in the Request Does Not Apply


Anderson Living Trust v. WPX Energy Prod., LLC, —F.R.D.—, 2014 WL 930869 (D.N.M. Mar. 6, 2014)

In this case, the court analyzed the question of whether “a party must, under rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient” and concluded that “the rule 34(b)(2)(E)(i) requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.”  Thus, the court declined to order Defendants to arrange and label their production, including approximately 20,000 pages of hard copy documents which had already been scanned and produced in .PDF format at Plaintiff’s request. Continue Reading

Sanctions Imposed for Manipulation of Metadata to Conceal Use of Unproduced Computer


T&E Investment Group, LLC v. Faulkner, Nos. 11-CV-0724-P, 3:11-CV-1558-P, 2014 WL 550596 (N.D. Tex. Feb. 12, 2014)

In this case, the District Court adopted the recommendation of the Magistrate Judge and ordered an adverse inference and monetary sanctions for Defendant’s manipulation of metadata using a bulk file changer in an attempt to conceal his use of an unproduced computer. Continue Reading

Upcoming Event: Mastering E-Discovery, Litigation Holds & Metadata (Live CLE/Telephonic Seminar, organized by The Rossdale Group)

Posted in EVENTS

Thursday, March 6, 2014
Noon – 1:30 ET

Join K&L Gates attorneys Thomas E. Kelly and Bree Kelly and their fellow panelists Elizabeth Treubert Simon, Of Counsel at Vorys, and Jay G. Safer, Partner at Locke Lord, for this informative and timely discussion of important issues in electronic discovery.

Attorneys today must understand and advise clients on the winning tactics and techniques governing electronic discovery, litigation holds, and metadata. The laws governing e-discovery have changed considerably in recent years with rapid advancements in technology. In addition, almost all computer applications and platforms generate metadata, which can be disastrous for your clients. Metadata comes to the fore at each phase of the e-discovery process, including in inadvertent disclosures, meet-and-confer, culling/reviewing/coding, and planning.

This seminar provides guidance so attorneys and legal professionals can easily grasp the current requirements mandated under the law, revised e-discovery practices, concerns involving metadata, and compliance required for effective retention and destruction of electronically stored information. This seminar will examine the full extent of the duty to preserve electronic evidence and provide practical strategies for streamlining efforts to minimize costs and time in e-discovery. Our nationally distinguished faculty will discuss the latest techniques in legal hold letters, metadata, document management, and means to use electronic discovery to your client’s advantage. Register today to enroll in this convenient, live telephonic seminar on E-Discovery, Litigation Holds, & Metadata CLE.”

To learn more or to register, click here.

Preservation Costs Survey: The Results are In!

Posted in NEWS & UPDATES

Professor William H.J. Hubbard from the University of Chicago Law School recently concluded his Preservation Costs Survey and the results are now available.  The survey “is the first, and to date only, systematic effort to measure the extent and costs of preservation activity across a broad sample of companies,” and collected data from 128 companies, “including companies of all sizes and from a broad range of industries.”  The results are both fascinating and timely, in light of proposed amendments to the Federal Rules which may affect preservation obligations in future litigation.

Notable findings include that “[o]ver 79 percent of respondents reported a ‘great extent’ or ‘moderate extent’ of preservation burdens”; that “[a]mong the largest companies in the sample, the estimated costs exceed $40 million per company per year”; and that “[o]n average across all survey respondents, slightly less than half of all preserved data is ever collected, processed, and reviewed” and “[e]ven less is produced or eventually used in litigation.”  Also notable was the conclusion that “[r]ule changes with even modest effects would generate meaningful cost savings” and that “[f]or the largest companies in the sample, a 3 percent reduction only in employee time spent on litigation holds would equate to savings of over $1 million per company per year.”

The Summary of Findings and Final Report were submitted to the Advisory Committee on Civil Rules by Professor Hubbard during the public comment period for the currently proposed amendments to the Federal Rules of Civil Procedure (which has now closed). 

A copy of the cover letter accompanying Professor Hubbard’s submission to the Committee is available here.  The Summary of Findings is available here.  A copy of the Final Report is available here.

In Case You Missed It: ABA Working Group Publishes “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases”


The ABA Electronic Discovery (ESI) in Bankruptcy Working Group has published the final draft of its “Best Practices Report on Electronic Discovery (ESI) Issues in Bankruptcy Cases” which “provides the framework for consideration of ESI issues in bankruptcy cases.”  According to Richard Wasserman, Chairman of the ABA Electronic Discovery in Bankruptcy Working Group, the Report “sets forth principles and guidelines on the scope and timing of a party’s obligation to preserve ESI in bankruptcy cases” and “addresses both debtor and creditor obligations to preserve ESI not only in connection with adversary proceedings and contested matters, but also in connection with the bankruptcy case itself.”  (Richard L. Wasserman, Best Practices on ESI Issues In Bankruptcy Cases, Law360 (Sept. 3, 2013, 1:17 PM ET) http://www.law360.com/articles/468985/best-practices-on-esi-issues-in-bankruptcy-cases).

The report is divided into six sections:

The sections are ESI Principles and Guidelines in Large Chapter 11 Cases; ESI Principles and Guidelines in Middle Market and Smaller Chapter 11 Cases; ESI Principles and Guidelines in Chapter 7 and Chapter 13 Cases; ESI Principles and Guidelines in Connection with Filing Proofs of Claim and Objections to Claims in Bankruptcy Cases; ESI Principles and Guidelines for Creditors in Bankruptcy Cases; and Rules and Procedures with Respect to ESI in Adversary Proceedings and Contested Matters in Bankruptcy Cases.

The final report was printed in the August 2013 edition of The Business Lawyer and is available to ABA members and customers, here.

A version of the final report, described as “in substantially the form” that was published in August in The Business Lawyer was posted on the Law360 website on September 3, 2013.  That version of the Report is available, here.

Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith


Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014)

Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and Illinois common law, but could not establish the timing of the at-issue destruction.  The court reasoned that the OMA did not impose a specific duty to preserve for purposes of litigation (“and certainly not for this specific litigation”) and declined to impose sanctions where bad faith could not be established absent evidence of when the tapes were destroyed. Continue Reading

Speak Now or Forever Hold Your Peace: Comment Period on Proposed Amendments to Federal Rules Closes February 15, 2014


As was previously reported on this blog, proposed amendments to Federal Rules of Civil Procedure 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms were published for public comment on August 15, 2013.  Since that time, nearly 700 written comments have been submitted for consideration by the Advisory Committee on Civil Rules and more than 120 people have provided live testimony at one of three public hearings—a clear reflection of the importance of these proposed amendments and their potential effects on the future of civil litigation.

For those still interested in commenting, it is not too late!  The public comment period closes on February 15, 2014. 

For more information regarding the proposed amendments, or to learn more about submitting a comment, click here.

Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages


Calderon v. Corporacion Puertorrique a de Salud, —F. Supp. 2d—, 2014 WL 171599 (D.P.R. Jan. 16, 2014)

In this case, Defendants sought to exclude all messages between Plaintiff and a particular email address/unknown person (the alleged harasser) and also asked that the case be dismissed with prejudice because of Plaintiff’s (apparently selective) failure to preserve more than 38 messages. The court found that Plaintiff had violated his duty to preserve and that an adverse inference was warranted.  Notably, the court’s determination that Plaintiff reasonably anticipated litigation turned on the analysis of his phone and messaging records, which were produced to Defendants by Plaintiff’s service provider.

Plaintiff alleged sexual harassment. The messages at issue were relevant to those claims.  Plaintiff admitted deleting some messages from his phone, prompting Defendants to file a motion in limine seeking the exclusion of all messages and arguing that the case should be dismissed.  While that motion was pending, Defendants received Plaintiff’s phone and text messaging records from the relevant time period from Plaintiff’s service provider.  Based on those records, Defendants filed a supplemental motion seeking dismissal of the case as a sanction for Plaintiff’s spoliation of evidence. Continue Reading