The Sedona Conference working paper on E-Discovery of Inaccessible Information
July 28th, 2008 Filed Under E-discovery, legal news
Recently the Sedona Conference, of which this writer is a member, released its working paper titled Preservation, Management and Identification of Sources of information that are Not Reasonably Accessible. A summary of the guidlines are as follows:
Guideline 1. Where litigation is anticipated but no plaintiff has emerged or otehr considerations make it impossible to initiate a dialogue, the producing party make preservation decisionsby a process conforming to that set forth here.
Guideline 2. As soon as feasible, preservation issues should be openly and coopertatively discussed in sufficient detail so that parties can reach mutually satisfactory accomodation and also evaluate the need, if any, to seek court or assistance.
Guideline 3. In conjunction with the initial discussions or where appropriate in response to discovery request requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.
Guideline 4. A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.
Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accomodate preservation imperatives.
See PDF version of guidelines here.
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Judge Paul Grimm Gives Guidance on How to Conduct keyword searches
July 17th, 2008 Filed Under E-discovery, legal news
Recently Judge Paul Grimm provided some insight as to the best way to conduct keyword searches. In Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 identifies the primary issues in e-discovery and how to comply with the legal demands of your case without being over or under inclusive in the process. The two approaches suggested by Judge Grimm are to use a “collaborative” approach or a “best practices” approach. The “collaborative approach” involves both parties agreeing to a search methodology and its implementation. The second is the “best practices” approach advocated by the Sedona Conference where both parties demonstrate that they have taken reasonable measures to reduce over and under production errors.
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Diary of a Plaintiff’s counsel in Whitney v. JetBlue
April 30th, 2008 Filed Under E-discovery, Spoilation, legal news
And so it goes…
2008-04-30 Spoliation Motion: Denied, but Attorneys Fees and Costs Awarded for NegligenceFirst, a disclosure. I am plaintiff’s counsel in the case discussed below. Now, for the decision:
The Court in Whitney v JetBlue 07-cv-1397 (EDNY 2008) today denied a motion for spoliation, but nonetheless awarded attorneys fees and costs in connection with that motion. In this case, an original, paper-and-ink contemporaneous report drafted by an airline attendant was admittedly destroyed, and the information from that report was alleged to have been entered into defendant’s database.
The Court found that although defendant had a “clear obligation” to put a litigation hold on the paper record, it permitted that record to be destroyed as a result of a “bulk destruction” of documents. The Court found no evidence of bad faith, but did find that the evidence was obviously relevant, under the complete control of the defendant, and that it could be argued that “under all the circumstances of the case, JetBlue was grossly negligent in its responsibility to supervise and ensure retention of the document.”
Interestingly enough, the Court notes that the digital versions of the destroyed report did vary, but deemed the variation insufficient to show that the destroyed report might have contained other information tending to corroborate plaintiff’s allegations.
All that said, the Court did impose sanctions of attorneys fees and costs for negligence (arguably, “gross negligence”) in connection with the motion for spoliation. The Court did point out that “defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff.” The Court nonetheless did impose sanctions of attorneys fees and costs for negligence in connection with the motion for spoliation. The Court also pointed out that “defendant failed, on several instances-in its initial disclosures and in connection with depositions-to provide accurate information to plaintiff.”
What is interesting here is that the Court tacitly acknowledges that the three proffered versions of the computer-generated report, which differed in time, title and content, did not save defendant from a finding of negligence for destruction of the paper based original. It might have, if defendant had taken even the simple step of scanning the original into an image for retention.
The decision is instructive, but it does highlight the need going forward to focus on technology-centric digital evidence issues and the need for (at this point) expert testimony to explain the heightened difficulty of proving a negative in the digital evidence universe on the one hand, and the ease with which undetectable manipulation may occur, and perhaps lead to a finding that the spoliated evidence (with now unknown content) could be presumed to corroborate the non-spoliating party’s allegations
First steps in the right direction.
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