Citation: Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. 2009).
Employee/Employer Implicated: Large Bookstore, Outside Counsel
e-Lesson Learned: Rule 30(b)(6) requests must specify whether electronically stored information retention policies will be within the scope of the deposition testimony sought.
In Newman v. Borders, Inc., the United States District Court for the District of Columbia held that because plaintiff failed to notify defendant in a deposition notice that questions in a deposition would pertain to the defendant book’s email policies (or any electronically stored information (ESI) in general), plaintiff was not entitled to take further depositions despite the designated witness’s lack of knowledge regarding that subject matter. However, the Court further held that due to both parties’ failures to try hard enough to resolve the dispute and because discovery regarding document retention policies is a legitimate request, defendant was nonetheless ordered to answer specific questions posed by the Court regarding its email retention policies.
The lesson here is twofold: If you are going to depose witnesses regarding ESI, you must put the other party on notice of the scope of the deposition testimony being sought, or risk losing the opportunity to conduct further depositions. But regardless of whether you are the party who asks or the party who answers, you must be sure to make every reasonable effort to resolve discovery disputes. Continue reading »
e-Lesson Learned: If your client is under an agreement to produce specific custodians’ documents by a specific deadline, make sure you know all physical locations each custodian might save documents, INCLUDING a shared file directory on a server. The court will not be impressed by your attempts to use, in support of your motions, documents produced late; and the excuse that you were unaware of a shared directory of a named custodian is no excuse for failing to produce responsive documents found on that directory.
It happens all the time. To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery. After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians?
The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms. But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian? Does a document not directly linked to a specific custodian automatically become “nonresponsive”? Continue reading »
Just because e-discovery is involved does not mean we can disregard the rules applied to traditional discovery. While we must adapt the way we approach discovery because of advancing technology and the decline of the paper-based world, we must not forget that the spirit behind the rules of discovery apply to all discovery, including e-discovery.
In High Voltage, the plaintiff filed a motion to compel the defendant to search for alternative sources beyond the initial production of documents for the selection of the VAULT mark. This would involve having the defendant review an additional 1.5 million pages of documents (17 gigabytes) beyond the 1.7 million pages already produced to the plaintiff. Continue reading »
e-Lesson Learned: Attorney-client communications made via personal, password-protected web-based email accounts are still privileged, even if accessed via a company-supplied computer – at least in New Jersey!
The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.
Citation: Stengart v. Loving Care Agency, Inc., Docket No. BER-L-858-08 (slip opinion) (N.J. Super. Ct. L. Div. Feb. 5, 2009)
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: (Coming as soon as the Supremes rule on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems
Citation: Cason-Merenda v. Detroit Medical Center, 2008 WL 2714239 (E.D. Mich. 2008)
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: The objective of Fed.R.Civ.P. 26(b)(2)(B) is the avoidance of undue burden or cost. A party who first suffers an expense and then seeks contribution and relief from the court may find little sympathy where it has failed to make timely a timely application for protection from the court.
Pay close attention to the rules! Failure to understand the purpose of the rules, as well as failure to comply with motion timelines, could cost your client the opportunity to be relieved of undue discovery costs. This is what happened to the defendant in Cason-Merenda v. Detroit Medical Center.
In Cason-Merenda v. Detroit Medical Center, defendant filed a Motion for Protective Order in an attempt to require the plaintiff to pay 50% of its third-party vendor electronic discovery costs. The defendant relied on Fed.R.Civ.P. 26(b)(2)(B), which states that “[o]n motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.” After the producing party shows that the information is not reasonably accessible, a court then has the ability to apportion costs between the two parties.
Citation: William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)
Employee/Employer Implicated: Counsel, Third Parties, Document Custodians
e-Lesson Learned: When it comes to conducting searches of email and electronically stored information, New York District Courts expect counsel to cooperate and, with the input of document custodians, carefully develop keywords, which should then be quality control tested to assure accuracy and eliminate false positives.
Although most professionals and courts are still behind in the times when it comes to electronically stored information (ESI) and its discovery, the Southern District of New York recently sent a clear warning: Get with it! This district court cautions that counsel must cooperate with each other and get input from document custodians, to carefully develop and test keywords used to search email and other ESI.
In this March 2009 case stemming from a multi-million dollar construction dispute, the project owner agreed to produce all project-related emails and ESI from its non-party construction manager. The issue before the Court concerned the production of the construction manager’s emails from its server, and how to separate unrelated emails from project-related emails.
Fool me once, shame on you. Fool me twice, more shame on you. Fool me three times and you are in some hot water! Regardless of whether you are (or represent) the plaintiff or the defendant, your discovery obligations are the same: Absent a valid, court-sanctioned objection, you must comply with your adversary’s discovery demands.
While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client. In one case, it may have cost one company $25 million.
Citation: Preferred Care Partners Holding v. Humana, 2009 WL 982460 (S.D. Fla. April 9, 2009)
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: Outside counsel should advise all party employees to conduct a thorough search of their computers so that relevant documents will be discovered and produced before the end of the discovery period.
The old adage: “measure twice, cut once” applies to carpentry and very well should apply to the legal profession. Both a carpenter and an attorney will save time and money by adhering to this maxim.
Take for example Preferred Care Partners Holding v. Humana. In that case, Humana produced an additional 10,000 documents two months after the completion of discovery, and suffered sanctions because of it. Humana discovered the existence of these newly produced documents during a deposition of an employee who found residual copies of documents that he believed had been deleted from his computer. As a consequence, Humana conducted a subsequent search which led to the discovery of a vast number of residual files on other computers. Because of the need to sort through all of the documents to determine which ones were responsive and privileged, the files were not produced until well after discovery concluded, and only a short time before trial.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: Coming as soon as the Supremes rules on the issue of whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems
So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.? Why are eDiscovelebrities and employment lawyers alike watching the case so closely? Why should YOU be watching?Privacy! (And eDiscovery, of course)
“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems.
According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit. According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case. Ouch!
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
“The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.”
-- Robert Ambrogi, Legal Tech Blogger and creator of LawSites
"Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others."
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