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.
Attorney barred in the District of Columbia and California currently looking for opportunities in the private and government sectors. Specializes in ediscovery/litigation efficiency project management but can do straight litigation or litigation management. Feel free to contact me with opportunities at info@sentrycg.com
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