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Electronic Discovery Law Blog

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

Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor


Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013)

Plaintiff sought to compel Defendants’ production of all responsive documents and also sought sanctions, including attorneys’ fees and an order requiring Defendants “to retain an e-discovery vendor to conduct a thorough and adequate search for responsive electronic documents.”  Acknowledging that it shared Plaintiff’s concerns “about the inadequacy of Defendants’ search for responsive documents,” the court granted Plaintiff’s motion to compel and also granted the request for attorneys’ fees (although at a reduced rate).  The court declined to order the retention of an e-discovery vendor “at this time,” but warned that such an order would be entered if problems with Defendants’ document production continued.

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Willful or Grossly Negligent Destruction of ESI Allows Presumption of Prejudice


Sekisui Am. Corp. v. Hart, —F. Supp. 2d—, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013)

Previously in this case, the Magistrate Judge declined to impose spoliation sanctions for Plaintiff’s deletion of emails and other ESI belonging to two important custodians absent a showing that the defendants were prejudiced by the destruction.  Upon Defendants’ objections, the district court reversed the denial of sanctions and imposed an adverse inference and monetary sanctions.  In doing so, the court reasoned that prejudice was presumed because the evidence was destroyed intentionally and explained that no showing of malice was required.

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Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment


The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment.  The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms.  Many of the proposed amendments are quite significant, particularly with regard to discovery, and our readers are therefore encouraged to review them carefully and share their thoughts with the Advisory Committee.

All written comments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX. 

To learn more about all of the proposed amendments and for instructions regarding how to submit your comments, click here.  For those interested only in the proposed amendments to the Rules of Civil Procedure, click here, to be taken directly to a discussion of those proposals.

Timing of Defendant’s Actions Weighs Heavily in Analysis of Spoliation Sanctions


Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, No. 11-13335, 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013)

For Defendant’s bad faith failure to preserve his cellular phone and his deletion of 270,000 files from his personal laptop using scrubbing software, the district court adopted the recommendations of the Magistrate Judge and ordered monetary sanctions equaling $35,000 and an irrefutable adverse inference that the phone and deleted files would have contained information unfavorable to the defendant, including that Defendant was involved with the company allegedly created for the “pass-through” scheme on which Plaintiff’s claims were based.

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


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.

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.

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


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


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


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).