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• Personal Jurisdiction established by way of Email transmission
• A $6 Million Discovery bill is NOT an outlier
• Federal Rules of Civil Procedure Amendments
• Fourth Circuit allows Punitive Damages without Proof of actual damages for plaintiff after employer Hacked into former employee’s AOL account
• An expensive eDiscovery lesson taught by the D.C. Circuit
• 2008: Five Groundbreaking cases In Ediscovery
• Defendant pays for not being thorough, efficient, and timely in E-Discovery
• Eight ways to Prepare for E-discovery in a pinch
• Is FRE 502 all it’s cracked up to be? Not so much
• Ediscovery Boot Camp
• SEC steps up its enforcement actions as it defines its priorities
• Litigation Holds
• The Glory Days are Over….we are now entering the Renaissance of litigation practice
• Ediscovery: Two different Judges, different reasoning, same conclusion, ease the discovery process
• 30(b)(6) witness sanctioned for lack of Knowlege about ESI systems
• New Federal Rule Of Evidence 502
• ABA Opines on Outsourcing
• The Sedona Conference working paper on E-Discovery of Inaccessible Information
• Judge Paul Grimm Gives Guidance on How to Conduct keyword searches
• Mikron Indus. v. Hurd Windows & Doors, Inc., Protective order denied

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Federal Rules of Civil Procedure Amendments

April 16th, 2009   Filed Under E-discovery, FCRP 26(c), legal news  

Litigation readiness by corporations is a necessity of operating effectively in todays business environment.  The following is a list of some of the recent amendments to FCRP that every prudent general counsel should know.

Rule 16: Pretrial Meetings

Requires all parties to meet and discuss a discovery plan and evaluate the preservation and production of ESI.

Rule 26(a): Duty to Disclose

Requires parties to identify all sources of ESI that may be relevant by category and location.

Rule 26(b): Discovery Scope and Limits

Every organization has “a duty to disclose all potentially relevant sources of information” to the courts as soon as they “reasonably anticipate” litigation unless these sources are “not reasonably accessible because of undue burden or cost.”

Rule 26(f):  Planning for Discovery

Requires opposing parties to meet before the trial, or at least 21 days before a scheduled conference to discuss the nature and basis of their claims in an attempt to speed the possibilities of a prompt settlement. 

Rule 34(a): Producing Documents

Electronically stored data – including email – is one of the types of records which can be requested for inspection by opposing parties.

Rule 34 (b): Procedure and Form of Production

As a part of the discovery process, the responding party should provide a “proposed plan for discovery” and produce all requested information, including ESI, in a form that is “reasonably useable.” 

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.

Mikron Indus. v. Hurd Windows & Doors, Inc., Protective order denied

June 8th, 2008   Filed Under E-discovery, FCRP 26(c)  

Mikron Indus. v. Hurd Windows & Doors, Inc., 2008 U.S. Dist. LEXIS 35166 (W.D. Wash. Apr. 21, 2008). 

“This matter comes before the Court on defendants’ “Motion for Protective Order Regarding ESI.”  . . . Relying on Fed. R. Civ. P. 26(b)(2), defendants ask the Court to shift the costs of defendants’ remaining electronic discovery to plaintiff. Defendants allege that searching through their electronically stored information (”ESI”) would generate substantial costs and yield cumulative results. Aside from the cost-shifting request, defendants raise no objection to discovery of their ESI.  In response, plaintiff contends that defendants have not reasonably complied with discovery requests to date. In particular, plaintiff continues to seek communications relating to the inception and termination of plaintiff’s business relationship with defendants. Having reviewed the memoranda, declarations, and exhibits submitted by the parties, the Court finds that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c). Accordingly, defendants’ motion for protective order regarding ESI is DENIED for failure to comply with Rule 26(c).”