Archive: 2012

1
New Illinois Rules Address Inadvertent Disclosure
2
The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)
3
Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions
4
New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts
5
Northern District of California Adopts New E-Discovery Guidelines
6
Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims
7
For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product
8
Court Orders Broad Discovery of Class Members’ Social Media, Text Messages & Email
9
Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification
10
For Discovery Violations, Court Orders Retention of Outside Vendor to Collect Responsive Documents, Investigate Possible Spoliation

New Illinois Rules Address Inadvertent Disclosure

On November 28, 2012, the Supreme Court of Illinois entered an order adopting new Rule of Evidence 502 Attorney Client Privilege and Work Product; Limitations on Waiver and a second order amending Rule 201 General Discovery Provisions.  The newly adopted rules address the inadvertent disclosure of privileged information and closely follow the Federal Rules addressing the same (FRE 502 & FRCP 26(b)(5)(B)).  The rules will be effective January 1, 2013.

A copy of the order adopting new Rule 502 is available here.

A copy of the order adopting the amendment to Rule 201 (and others) is available here.

The Sedona Conference® Publishes Primer on Social Media (Public Comment Version)

This month, the Sedona Conference® published a public comment version of its latest paper, The Sedona Conference® Primer on Social Media.  The primer, a somewhat different publication than prior commentaries, is described in its Preface as follows:

Unlike many of previous publications in this series, this is not entitled a “Commentary,” nor does it present any formal “Principles,” although it contains plenty of practical guidance for attorneys, judges, and parties.  This is called a “Primer” because the goal is to provide primary instruction to the bar and bench in the basics of social media and the law, from definitions, to the use of social media in business, to the discovery of social media in litigation, to professional responsibilities lawyers have in relation to their own use of social media.  This is a fast-developing and fast-changing area of technical, social, and legal development, and any consensus-based Commentary or set of Principles that claims to advance the law in this area may be doomed to obsolescence as soon as it is announced on Twitter.  However, we hope that this Primer represents a positive first step in grounding the dialogue leading to consensus on moving the law forward in the reasoned and just way.

This publication is available for download from The Sedona Conference®, here.

Court Addresses What Constitutes “Bad Faith,” Imposes Adverse Inference & Monetary Sanctions

Bozic v. City of Washington, No. 2:11-cv-674, 2012 WL 6050610 (W.D. Pa. Dec. 5, 2012)

Addressing Plaintiff’s accusation of spoliation based on the destruction of the contents of an audio tape, the court considered “the requisite mental state or level of scienter” necessary to establish bad faith, as is required in the Third Circuit, and found that the circumstances surrounding the destruction established sufficient culpability, that it was “highly likely” that Plaintiff was materially prejudiced, and that “no lesser sanction than at least a spoliation adverse inference would avoid substantial unfairness” and ordered an adverse inference and monetary sanctions.

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New Jersey Addresses Discovery of ESI in Amendments to Rules Governing Criminal Practice and Rules Governing Practice in the Municipal Courts

On December 4, 2012, the New Jersey Supreme Court adopted amendments to the New Jersey Rules Governing Criminal Practice and to the Rules Governing Practice in the Municipal Courts.  The amendments were initially recommended by the Supreme Court Special Committee on Discovery in Criminal and Quasi-Criminal Matters.  The amendments are effective on January 1, 2013.

Among other things, the amendments to the Rules of Criminal Practice address a newly imposed obligation to meet and confer on the issue of electronic discovery (Rule 3:9-1(b)); the discoverability of electronically stored information generally (e.g., by specifically identifying such information as discoverable under the rules), including the format of production (Rule 3:13-3); and discovery fees (Rule 3:13-5).  Similarly, the amendments to the Rules of Practice in the Municipal Courts address (among other things) the discoverability of electronically stored information generally, including the format of production and discovery fees (Rule 7:7-7).

For a copy of the Notice to the Bar, including the Court’s Order, click here.

Northern District of California Adopts New E-Discovery Guidelines

This week, the U.S. District Court for the Northern District of California announced "new Guidelines for counsel and litigants regarding the discovery of electronically stored information ("ESI")."

According to the Court’s announcement:

The Guidelines are designed to establish best practices for evidence preservation in the digital age and to ensure that local practices regarding the discovery of ESI keep pace with rapidly evolving technology and to be flexible enough to be used in a wide variety of cases.  According to Judge Laporte:  “These tools are designed to promote cooperative e-discovery planning as soon as practicable that is tailored and proportionate to the needs of the particular case to achieve its just, speedy and inexpensive resolution, consistent with Rule 1 of the Federal Rules of Civil Procedure.”

The package of new ESI-related documents comprises:

• Guidelines for the Discovery of Electronically Stored Information;
• ESI checklist for use during the Rule 26(f) meet and confer process;
• Model Stipulated Order Re: the Discovery of Electronically Stored Information.
 

To read the full text of the announcement, click here.
To access the new guidelines and related documents, click here. 

Use of a Hammer and of Wiping Software to Destroy Evidence Results in Dismissal of Plaintiff’s Claims

Taylor v. Mitre Corp., No. 1:11-cv-1247, 2012 WL 5473573 (E.D. Va. Nov. 8, 2012) adopting recommendations of Taylor v. Mitre Corp., No. 1:11-cv-01247 (LO/IDD), 2012 WL 5473715 (E.D. Va. Sept. 10, 2012)

In this case, the Magistrate Judge found that dismissal of Plaintiff’s claims was warranted for his “egregious” discovery conduct, including physically destroying a relevant computer with a hammer and using both Evidence Eliminator and CCleaner to erase potentially relevant evidence.  The court also recommended that Plaintiff pay Defendant’s reasonable attorney’s fees and costs incurred as a result of the spoliation.  On appeal, the recommendations were adopted by the District Court.

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For Failure to Preserve, Court Orders Production of Privileged Documents and Work-Product

United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT, 2012 WL 5387069 (D.N.M. Oct. 3, 2012) overruling objections to United States ex rel. Baker v. Cmty. Health Sys., Inc., No. 05-279 WJ/ACT (D.N.M. Aug. 31, 2012)

In this case, the Magistrate Judge determined that sanctions were warranted for the Government’s untimely and inadequate litigation holds, which resulted in prejudice to Defendants.  As a sanction, the Magistrate Judge recommended that that the Government be ordered to produce documents that it had withheld as privileged and/or work product, that Defendants were entitled to recover reasonable attorneys fees and costs, and that the Government must show cause why additional searching should not be required.  The District Court overruled objections to the order.

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Court Orders Broad Discovery of Class Members’ Social Media, Text Messages & Email

E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

In this case involving allegations of sexual harassment, a hostile environment and retaliation, the court granted in part Defendant’s Motion to Compel and ordered broad discovery of class members’ social media, text messages and email.

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Da Silva Moore : Judge Carter Denies Motion for Recusal or Disqualification

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Nov. 8, 2012)

On November 8th, District Court Judge Andrew L. Carter, Jr. filed his long awaited decision in response to Plaintiffs’ Motion for Recusal or Disqualification of Magistrate Judge Andrew Peck.  In his short and to the point opinion, Judge Carter concluded that “Judge Peck’s decision accepting computer-assisted review, reached upon consideration of the applicable law, was not influenced by bias, nor did it create any appearance of bias.”  The court further found that “Magistrate Judge Peck’s conduct falls within proper bounds of judicial conduct” and that “[h]is denial of Plaintiffs’ recusal motion is consistent with the interests of judicial economy and the administration of justice.”

A full copy of the order is available here.

For Discovery Violations, Court Orders Retention of Outside Vendor to Collect Responsive Documents, Investigate Possible Spoliation

Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS (DTBx), 2012 WL 4791614 (C.D. Cal. Oct. 5, 2012)

In this case, the court concluded that Defendant failed to comply with its discovery obligations by 1) failing to conduct a reasonably diligent search, 2) improperly withholding responsive documents, and 3) failing to take adequate steps to ensure preservation.  Accordingly, the court ordered that an outside vendor be retained to search for and collect Defendant’s responsive documents and to determine if any documents had been permanently deleted, at Defendant’s expense.  The court also ordered monetary sanctions.

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