February 2008 – Electronic Discovery Law

Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court

Feb 29 2008

On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5.2, and Criminal Rule 49.1 require that personal identification information be redacted from documents filed with the court — individuals’ Social Security and taxpayer identification numbers, names of minor children, financial account numbers, dates of birth, and, in criminal cases, home addresses.

A memorandum briefly describing the new privacy rules, the text of the rules and committee notes, and additional information contained in the excerpt reports of the Rules Committees have been posted on the U.S. Court’s Federal Rulemaking website, and are also linked below.

Memorandum Describing the Privacy Rules and Judicial Conference Privacy Policy

Qualcomm Accepts Sanctions Issued by Magistrate Judge and Pays Entire $8,568,633.24 Sanction to Broadcom

Feb 28 2008

In its Reply to Broadcom Corporation’s Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge filed on February 20, 2008, Qualcomm states that it acccepts the sanctions imposed by Magistrate Judge Barbara Lynn Major and is not appealing or filing any objections to the January 7, 2008 Sanctions Order. Qualcomm further advises that it has now paid to Broadcom the full $8,568,633.24 monetary sanction ordered by the Magistrate Judge, and notes that it is participating in good faith in the CREDO program.

Qualcomm goes on to point out that Broadcom never requested that sanctions be imposed on the individual outside counsel who had formerly represented Qualcomm in the litigation. “Accordingly, Broadcom has no basis for (a) complaining about Qualcomm’s compliance with the Sanctions Order since Qualcomm has in good faith done everything ordered by the Magistrate Judge; or (b) ‘responding’ to any objections to the Sanctions Order since those objections were filed only by the individual attorneys – not Qualcomm – and Broadcom did not even seek sanctions against the individual attorneys.” Qualcomm rejected Broadcom’s suggestion that the district court might refer certain issues back to the Magistrate Judge so that she could consider additional sanctions against Qualcomm. It stated that there had been no suggestion that the Magistrate Judge lacked authority to issue sanctions against Qualcomm, and now that Qualcomm had complied fully with the Sanctions Order, and had not objected to or appealed the sanctions, there is simply no need to re-open it.
Read More

Senate Passes Proposed Evidence Rule 502

Feb 27 2008

On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The bill now goes on to be voted on in the House of Representatives.

The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.

On February 25, 2008, the Senate Judiciary Committee had reported favorably on the bill. See Sen. Rept. No. 110-264.

Additional information about the legislation may be found on the Library of Congress "Thomas" website, and at http://www.govtrack.us/congress/bill.xpd?bill=s110-2450.

Defense Counsel’s Unilateral Modification of Parties’ Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email

Feb 26 2008

Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008)

This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants. After defense counsel objected to plaintiffs’ requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004. They proposed that, after they reviewed all the emails and narrowed them down to those they thought were relevant, they would give defendants an opportunity to review this reduced set of emails and raise any attorney client privilege or other objections they might have and retrieve items that should be protected. Fearing that this "claw back" provision could be deemed a waiver of the privilege in some states, defense counsel was relunctant either to agree to the provision or to produce the relevant back up tapes because of the exceedingly expensive process of defense counsel screening them for privilege before production.

Plaintiffs filed a motion to compel to resolve the dispute and a hearing was held. The court established a protocol that was intended to balance the concerns and needs of both sides at what was hoped to be manageable costs. Under the protocol, plaintiffs’ computer forensic expert, Mark Lanterman, was to retrieve from defendants’ computer back up tapes all of the emails for the months of April, May and June of 2004. Based on search terms and methods to be worked out by the attorneys for both sides, Mr. Lanterman, "at Plaintiffs’ reasonable expense for his services and the electronic copying expenses," was to filter this database for the team leaders and hundreds of plaintiffs. Mr. Lanterman was to act under the "direction and control" of defense counsel in retrieving the requested emails from the backup tapes. The searching and filtering of defendants’ database by Mr. Lanterman would be limited to the terms agreed upon by the parties. Further, Mr. Lanterman was required to sign a declaration agreeing to the agency relationship with and under the direction and control of defense counsel, to be bound by the court’s orders and to maintain confidentiality. At the hearing, while plaintiffs’ counsel agreed to pay the reasonable expenses of Mr. Lanterman, he expressed a desire to limit the costs to no more than what was needed and not to be giving defense counsel a "carte blanche" to run up the costs of the screening procedure at plaintiffs’ expense.

K&L Gates’ E-Discovery Case Database Has Fresh New Look, More Features, and Now Over 900 Cases

Feb 20 2008

We are pleased to announce that we have enhanced our searchable e-discovery case database and have added a number of new attributes – several of which correspond with the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. For example, you can now select the attribute “FRCP 37(e) Safe Harbor,” click “Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule. Other new attributes that we have added include:

FRCP 26(b)(2)(B) “Not Reasonably Accessible”
FCRP 34(b) Procedure or Format
FRCP 26(b)(2)(C) Limitations
FRCP 26(b)(5)(B) or Proposed FRE 502
Early Conference or Discovery Plan
Local Court Rule, Form or Guideline
Motion for Preservation Order

What’s more, the database now contains over 900 e-discovery cases from state and federal jurisdictions, with new cases being added every week. Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country.

The database is still searchable by keyword, or by any combination of 28 different case attributes. Each search will produce a list of relevant cases, including a brief description of the nature and disposition of each case, the electronic evidence involved and a link to a more detailed case summary if available.

Notwithstanding Objections to Magistrate Judge’s January 7 Order, Sanctioned Attorneys Appear and Participate in CREDO Program

Feb 06 2008

On January 29, 2008, attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young, as well as certain Qualcomm in-house attorneys, appeared before United States Magistrate Judge Barbara L. Major, as directed in her January 7, 2008 Order. Also appearing were outside counsel for Qualcomm, counsel for some of the sanctioned attorneys, and counsel for Broadcom. The attorneys spent the day working to develop a comprehensive Case Review and Enforcement of Discovery Obligations ("CREDO") protocol, and at the end of the day, several attorneys appeared before the court again to report on their progress. After reviewing counsel’s draft protocol and hearing their plans for developing it further, Magistrate Judge Major scheduled a status hearing for February 19, 2008 at 11 a.m.

Also on January 29, 2008, United States Senior District Judge Rudi M. Brewster issued an order requesting that the parties provide him with courtesy copies of all their filings related to the Magistrate Judge’s January 7, 2008 Order, in light of the objections and requests for reconsideration that were timely filed by the sanctioned attorneys. (Qualcomm itself did not file a written objection to the January 7, 2008 Order.) View the attorneys’ objections here: Batchelder, Mammen & Leung Objection; Young Objection; Patch Objection; Bier Objection.

View Broadcom’s response to the attorney objections.

The court has not yet set a hearing date on the attorneys’ objections and requests for reconsideration.

Archive - February 2008