Archive: July 2014

1
Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems
2
Supreme Court of Texas Clarifies Standards Governing Spoliation, Limits Imposition of Spoliation Instructions and the Presentation of Evidence of Spoliation to the Jury
3
Sale of Seized Computer at Public Auction did not Waive Privilege where Steps were Taken to Prevent Disclosure

Counsel’s Failure to “Examine Critically” Client’s Representations about “Existence and Availability of Documents” was “Overriding Reason” for Discovery Problems

Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-1122, 2014 WL 2987051 (S.D. Ohio July 1, 2014)

While the preservation, review, and production of ESI often involves procedures and techniques which do not have direct parallels to discovery involving paper documents, the underlying principles governing discovery do not change just because ESI is involved. Counsel still have a duty (perhaps even a heightened duty) to cooperate in the discovery process; to be transparent about what information exists, how it is maintained, and whether and how it can be retrieved; and, above all, to exercise sufficient diligence (even when venturing into unfamiliar territory like ESI) to ensure that all representations made to opposing parties and to the Court are truthful and are based upon a reasonable investigation of the facts. As another Judge of this Court has observed, “trial counsel must exercise some degree of oversight to ensure that their client’s employees are acting competently, diligently and ethically in order to fulfill their responsibility to the Court,” Bratka v. Anheuser–Busch Co., 164 F.R.D. 448, 461 (S.D.Ohio 1995) (Graham, J.). That holds true whether the bulk of the information relevant to discovery is ESI or resides in paper documents.

In this age discrimination case, the court determined that both defendant and counsel failed to uphold their discovery obligations, including by failing to timely produce ESI and by failing to make timely efforts to preserve.  The court observed, however, that the “significant problems arose in this case for one overriding reason: counsel fell far short of their obligation to examine critically the information which Tellermate gave them about the existence and availability of documents requested by the Browns.”  “As a result, they did not produce documents in a timely fashion, made unfounded arguments about their ability and obligation to do so, caused the Browns to file discovery motions to address these issues, and, eventually, produced a key set of documents which were never subject to proper preservation.”  Accordingly, the court ordered that defendant was precluded from “using any evidence which would tend to show that the Browns were terminated for performance-related reasons” and also ordered monetary sanctions, to be paid jointly by defendant and counsel. Read More

Supreme Court of Texas Clarifies Standards Governing Spoliation, Limits Imposition of Spoliation Instructions and the Presentation of Evidence of Spoliation to the Jury

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013)

In this case, the Supreme Court of Texas “enunciate[d] with greater clarity the standards governing whether an act of spoliation has occurred and the parameters of a trial court’s discretion to impose a remedy upon a finding of spoliation, including submission of a spoliation instruction to the jury” and held that such an instruction is only appropriate when the destruction of evidence was intentional or deprived the opposing party of “any meaningful ability to present a claim or defense.”  The court also concluded that “[s]poliation findings—and their related sanctions—are to be determined by the trial judge, outside the presence of the jury, in order to avoid unfairly prejudicing the jury by the presentation of evidence that is unrelated to the facts underlying the lawsuit” and that “[a]ccordingly, evidence bearing directly upon whether a party has spoliated evidence is not to be presented to the jury except insofar as it relates to the substance of the lawsuit.”  Applying the newly-articulated standards to the facts of the case before it, the court held that “imposition of the severe sanction of a spoliation instruction was an abuse of discretion” and that the trial court erred “in admitting evidence of the circumstances of the spoliating conduct.”  Accordingly, the judgment of the court of appeals was reversed, and the case was remanded for a new trial. Read More

Sale of Seized Computer at Public Auction did not Waive Privilege where Steps were Taken to Prevent Disclosure

Kyko Global Inc. v. Prithvi Info. Solutions Ltd., No. C13-1034 MJP, 2014 WL 2694236 (W.D. Wash. June 13, 2014)

In this case, the court addressed the question of whether privilege was waived by the sale of a seized computer at public auction.  Balancing the relevant factors under Washington law, the court determined that the prior owner’s steps to protect her information by reformatting the computer and installing a new operating system coupled with defendants’ prompt efforts to remedy the error and considerations of fairness weighed against waiver. Read More

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