2008: Five Groundbreaking cases In Ediscovery
December 15th, 2008 Filed Under E-discovery, FCRP 26(c), legal news
This is one writer’s opinion, what’s yours?
5) Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008)
If there ever was an opinion written by a judge to make a larger societal point, Mancia was certainly it. Judge Paul Grimm, who’ll appear on this list in another slot as well, has clearly taken the mantle from Judge Scheindlin as the leading electronic discovery jurist. He’d heretofore authored a number of significant opinions in this area, including Hobson and Thompson. Now, in Mancia he used a garden variety discovery dispute, which was typically rife with boilerplate objections and other obstreperous tactics, to highlight the Sedona Conference’s Cooperation Proclamation.
The lasting takeaway from the opinion is the notion that “[c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct electronic discovery, and sanctioned lawyers and parties for failing to do so.” To support this notion he cites the Sedona Conference Proclamation and the little used FRCP 26(g). This opinion is noteworthy because it gives precedent to bolster the Sedona initiative and should provide a ready citation for all those counsel who aren’t getting the level of cooperation they need from the opposition. It remains to be seen if other judges will follow suit, but this could be the beachhead for a more cooperative electronic discovery process in 2009 and beyond.
4) Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008)
Flagg highlights the growing need to reconcile the electronic discovery landscape, which typically focuses somewhat myopically on email, with the larger informational trends which are now categorized by the use of blogs, social networking sites, instant messaging, and text messaging. Flagg was one of the first to determine text messages (e.g., messages exchanged among certain officials and employees of the City of Detroit via city-issued text messaging devices) were discoverable under the standards of FRCP 26(b)(1). The holding further demonstrated the challenges of conducting electronic discovery across information systems that mix personal information with business communications. This type of information commingling will continue to escalate, causing significant long term electronic discovery challenges due to thorny privacy, privilege and policy implications.
3) Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008)
Rhoads is one of the first cases post Federal Rule of Evidence (FRE) 502, which recently created a national standard (versus the previous split in jurisdictions) and now states a “middle ground” for the determining of inadvertent disclosure during electronic discovery. The key provision is (b)(2) which provides protection only if “the holder of the privilege or protection took reasonable steps to prevent disclosure.” So, Rhoads took that “reasonableness” question head on in a scenario where the plaintiff Rhoads admittedly (yet inadvertently) produced over eight hundred privileged, electronic documents. The decision is significant because it used the five-factor test stated in Fidelity, but put an undue weighting on the final test which was: “whether the overriding interests of justice would be served by relieving the party of its errors.” This approach potentially threatens the development of sound case law that will be necessary to help the deployment of FRE 502 into practice because it casts too much uncertainty with its weighting of “fairness” (a problematically vague notion) in the analysis. It will be interesting to see if/how this approach is subsequently adopted as we enter the New Year.
2) In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)
Seroquel is significant because it set out very clear guidelines for electronic discovery behavior that, while perhaps commonplace, is now deemed unacceptable and sanctionable under FRCP 37. Stating that “it is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence” the court went on to note specific failings by the producing party, including (i) the use of a plainly inadequate key word search terms, (ii) the failure to provide attachments, (iii) deficient efforts in preventing/solving technical problems and (iv) inadequate quality control oversight. This type of holding makes it clear that the bar for electronic discovery conduct is rapidly increasing, such that it is likely to see more frequent malpractice actions against counsel if and when things go wrong.
1) E-Discovery Case of the Year: Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008)
Judge Grimm’s hallmark opinion has had the legal community buzzing over the past several months and the reason appears pretty straight forward. In Victor Stanley Grimm builds on the holdings in Seroquel, O’Keefe and Equity Analytics, to boldly cast doubt on a practice so routine that it’s literally shocked the legal community into reevaluation:
(”[D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) . . . .”The notion that electronic discovery search is beyond the ability of most attorneys has caused tremors within the litigation support community who had a long history of blindly receiving keywords from counsel, running them and turning back over the results - often blissfully unaware of the extent to which those keyword searches actually located relevant information. Victor Stanley’s analysis of the “reasonableness” of search protocols also has impact on the FRE 502 and therefore cements its place alongside other e-discovery “must reads” such as Zubulake and Morgan Stanley.
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Defendant pays for not being thorough, efficient, and timely in E-Discovery
December 11th, 2008 Filed Under E-discovery
In the court case Omega Patents v. Fortin Auto Radio, both the plaintiff and the judge were unhappy with the defendant’s volume of e-discovery production, which included a few documents and just five emails in a universe of tens of thousands. The defendant subsequently searched for and reviewed more than 17,000 emails, of which 2,000 were produced for plaintiff review. The court was not pleased at the long delay and ruled that the defendant had not proved the undue burden and expense of the subsequent search. The court issued a monetary sanction against the defendant.
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Eight ways to Prepare for E-discovery in a pinch
December 8th, 2008 Filed Under E-discovery, legal news
LTN gives eight ways to prepare for e-discovery when you are under the gun.
1. Apply the five Ws of journalism (who, what, when, where, and why) to get a handle on your core preservation duties. Immediately list the people, events, time intervals, business units, records, and communications central to the case.
a. List apparent key players (don’t forget assistants who, for example, handle the boss’ e-mail, and significant third parties over whom your client has a right of direction or control).
b. Hone in on what happened — both from your perspective and theirs — and posit what ESI sheds light either way, or tends to explain or challenge the key players’ actions and attitudes.
c. Decide what dates and time periods are relevant for preservation. Is there a continuing preservation obligation going forward?
d. Determine which business units, facilities, systems, and devices most likely hold relevant ESI.
Your lists will change over time. But a focused, thoughtful, and well-documented effort that is diligently implemented will be more defensible, less costly, and invariably more effective than a scattershot approach. Don’t delay. It needn’t be flawless right now — reasonable will do.
2. Focus on the fragile first. What potentially relevant ESI has the shortest shelf life and requires quickest action to preserve while it’s still reasonably accessible? Voicemail, web mail and text messaging, computers requiring forensic examination, web content, and surveillance video are examples of ESI that tend to be rapidly discarded or overwritten. Grabbing e-mail of key custodians before it migrates to backup media can save a bundle and accelerate search and processing.
3. Protect employees from themselves. People who wouldn’t dream of shredding a paper record will purge ESI with nary a thought. In the blink of an eye, history will be reinvented as employees delete overly candid e-mail and commingled personal communications. The results are often catastrophic and always costly. Assess whether those entrusted with preservation can be trusted to perform and don’t rely on custodial preservation alone when its failure is reasonably foreseeable.
4. Holds should be instructional, not merely aspirational. Too many lawyers draft legal hold instructions designed to protect lawyers. Broadly disseminating a form hold directive saying “keep everything” isn’t helpful and will come back to haunt you at deposition. “I got the memo,” they say, “but I didn’t know where to start.”
Tell custodians what to do and how to do it. Give examples that inform and deadlines that demand action. Get management buy-in for the time needed to comply. Better a handful of key players take the hold directive seriously than dozens or hundreds of minor players wink at it. [More…]
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Is FRE 502 all it’s cracked up to be? Not so much
December 4th, 2008 Filed Under E-discovery, Federal Rule of Evidence 502, legal news
As pointed out by one author, FRE 502 may not the panacea to ediscovery costs that many herald it to be. See below the three main problems that FRE 502 does not address and therefore makes the new rule.
Federal Rule of Evidence 502, enacted on Sept. 19, 2008, has been heralded as a significant development which “will effectively limit the skyrocketing costs of discovery.” The Rule and its promotion as a cost-saving panacea have no doubt raised expectations among clients and courts alike.
As a rule of evidence, FRE 502 is significant because it (a) resolves conflicts among federal courts concerning the effect of voluntary and inadvertent productions of privileged material and (b) imposes federal evidentiary rules on state courts. FRE 502 will not meaningfully reduce the costs of discovery, particularly in cases involving huge e-discovery obligations, related investigations by state government entities, and “asymmetric” discovery obligations (where one party has to produce a tremendous number of documents and the other does not) for three reasons:
- The touting of FRE 502 as a cost-savings measure is based on the erroneous premise that mitigating the risk of waiver will substantially reduce e-discovery costs.
- To avoid waiver, litigants must take “reasonable steps” to avoid inadvertent disclosures and “reasonable steps” to rectify productions errors, an ambiguous standard that is expensive to meet.
- As acknowledged by its drafters, FRE 502’s ability to mitigate the risk of waiver requires that state courts be bound by the Rule. Its so-called “controlling effect” provisions may not be constitutional. Until, and unless, FRE 502’s constitutionality is established, it will provide little assurance to litigants that state attorneys general and private litigants will be unable to establish waiver in state court proceedings.
OTHER FEARS DRIVE DISCOVERY COSTS
FRE 502 is based on the premise that litigants spend millions of dollars on privilege review, which they would not otherwise spend, out of fear that waiver of attorney-client privilege or work-product protection will result from the inadvertent production of protected documents. Thus, the scope and cost of privilege review can be reduced if the risk of waiver is minimized.
While avoiding waiver is important, the practice of reviewing potentially privileged documents on a document-by-document basis is motivated primarily by the desire to prevent disclosure of the protected information contained in the reviewed documents to adversaries. Avoiding waiver is a worthwhile goal, but the risk of disclosure, itself, warrants close scrutiny of potentially privileged documents.
Even if a document can be clawed back, the protected information in the document cannot be retrieved once it is viewed by an adversary. For this reason, the consensual disclosure of potentially privileged documents pursuant to “quick peek,” “claw back,” and non-waiver agreements is virtually inconceivable in a major litigation, where counsel has not first reviewed the documents for privilege.
Clients willing to allow adversaries access to privileged documents and work-product may save some money, but the costs of discovery in major cases will still be extremely high.
The high costs of e-discovery are driven by the sheer volume of documents and e-data that must be retrieved and reviewed because they are potentially “relevant” pursuant to Rule 26 of the Federal Rules of Civil Procedure. Large scale document production in the electronic age requires an integrated approach to review large numbers of documents, often on a document-by-document basis, for responsiveness, confidentiality, substantive analysis and the need to redact trade secrets, privacy information and other sensitive information.
Read the remainder of the article here.
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Ediscovery Boot Camp
December 3rd, 2008 Filed Under E-discovery, legal news
Georgetown law is hosting a 4-day ediscovery bootcamp. Cost to you…… a mere $2750.
E-Discovery Training Academy February 09 - February 13, 2009
As a multibillion dollar industry, electronic discovery has become one of the largest litigation expenses for law firms and companies. Despite its growing significance, lawyers and litigation support professionals frequently find themselves unprepared to successfully handle the myriad issues surrounding the discovery of electronically stored information (ESI). Not only do the attorneys need to have an understanding of the rules and procedures, but so do the company executives, IT personnel and the litigation support professionals who work closely with them on a daily basis.
Georgetown Law is the first law school to provide you with the opportunity to gain the essential knowledge and skills necessary you will need to help lead or participate on your e-discovery team. During this intense one-week session, instruction will be provided by some of this country’s leading e-discovery experts focusing on the nexus between the law and the technology. You will benefit from a rigorous curriculum that includes daily readings, hands-on exercises and proven strategic tips. At the conclusion of this specially crafted training program, you will return to your office with the practical skills and comprehensive knowledge to help guide your client or company through the many e-discovery challenges ahead.
Register now to ensure you have a seat at this inaugural event. Due to the interactive nature of the Academy, attendance is limited to 50 participants.
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