e-Lessons Learned

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 »

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 »

On June 29, 2009, Governor Schwarzenegger signed into law California’s Electronic Discovery Act, which is effective immediately.  For the most part, the recent eDiscovery amendments to the California Code of Civil Procedure track the federal rules.  For example, similar to the federal rules, the California rules use a broad definition of “electronically stored information,” allow requesting parties to inspect, copy and sample ESI, and require both parties to meet and confer regarding ESI discovery issues early in the litigation (in CA this must be done 45 days before a case management conference compared with 21 days under the federal rules).

However, the California amendments depart from the federal rules in a few distinct and important ways.   Continue reading »

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.

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This case is a civil rights action brought by more than thirty Latino plaintiffs who allege that the Immigration and Customs Enforcement Division of the United States Department of Homeland Security and certain of its employees subjected them to unlawful, unwarranted searches of their homes in violation of the Fourth Amendment.  The plaintiffs in this case had been ordered to leave the country, however, they remained in the US as fugitive aliens.  This opinion arose because counsel failed to discuss the form of production for electronic documents early in the case, and the Court was forced to resolve several issues concerning the discoverability of metadata.

During a Rule 26(f) discovery conference, the parties agreed that discovery would proceed and that the parties would serve their first requests for the production of documents by February 15, 2008.  There was no discussion of metadata at this conference.  On February 15, the Plaintiffs served their first request for the production of documents, but their request did not specify the form in which they sought to have electronically stored information (”ESI”) produced.  This request did not mention metadata either.

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Unfortunately, the key word search is ineffective for e-discovery.  A keyword search often misses many of the relevant documents.  However, the keyword search is the current standard for searches.

Does anything work short of hiring an expert?

Jason Baron and Doug Oard of the 2009 TREC Legal Track research team are addressing the many questions plaguing the field of E-discovery by testing the current E-discovery technology and various search methods.

With the help of lawyers, researchers, and scientists, the TREC researchers are seeking the perfect search for mining relevant e-discovery documents.

The shocking news – the technology tested from over 20 e-discovery vendors proved no better than Boolean keyword searches.   Continue reading »

This case arose from allegations of securities fraud against Collins & Aikman Corp made by the SEC.  Notably, during the course of discovery, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information.

First, the SEC produced massive amounts of documents. Specifically, the SEC produced 1.7 million documents (approximately 10.6 million pages), in response to defendant’s request for documents.  Moreover, these documents were in fifty-four separate categories maintained in different databases and containing different metadata protocols. Defendants were none too pleased about this and argued that the SEC failed to identify documents in response to its request for documents supporting particular factual allegations and instead dumped an unreasonable volume of documents.

In response, the SEC claimed that it did not “maintain a document collection relating specifically to the subject addressed” and thus its production reflected the documents as they were “kept in the regular course of business.”

However, during the course of discovery, information surfaced about the existence of approximately 175 file folders maintained by the SEC concerning the specific factual allegations of the complaint and maintained in the regular course of agency business. Continue reading »

Where a party requests that their opponent include metadata (native file format instead of, say, a .TIFF image of the document) in its electronic document production and no prior agreement exists, the opposition may answer the request by objecting and producing the material in a less desirable format (see Fed.R.Civ.P. 34(b)(2)(D)). If they do, then the requesting party must assert their own objection within a reasonable time, lest their ability to have the court consider their request and get the metadata through a meet and confer or a motion to compel may be lost.

In this complex suit involving contract, tort, and environmental statute claims surrounding contaminated concrete from a former factory site which Ford sold to Edgewood, defendant/counterclaimant Edgewood made an initial discovery demand for documents in their native format from Ford. Edgewood was entitled to request this, but under the discovery Rules, this does not guarantee that they will get what they want. Unless Ford willingly complied, only an agreement or a court order could ensure that Edgewood got the metadata. Here, there was no agreement, and Ford went ahead and did things their own way, sending the documents in .TIFF format.

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The case of Rep. William Jefferson out of Louisiana may have confused people when it first came out in July 2006.  The D.C. Court of Appeals held that the FBI overreached its authority by seizing legislative data.  However, the court found that the copying of computer hard drives and other electronic media was “constitutionally permissible” because Jefferson had a chance to show that the electronic information that was obtained from his congressional office computer was connected to legislative work.  If Jefferson was able to show this connection, the information was subject to constitutional protection.

Some of you more astute individuals may have already identified the snafu with which the FBI now has to deal.  This ruling basically allowed the FBI to seize electronic information, but did not permit its review until Jefferson had the chance to look at it to determine whether or not it was legislative in nature.  But how can Jefferson review information after it has been seized?   Continue reading »

R & R sails sued the insurer when, after the 2001 Australian wildfires ravaged their manufacturing facility, they believed the insurer did not pay the amount due under their contract. The suit was removed to Federal Court for the Southern District of California in June 2007, marking the beginning of a discovery period rife with evasion that ultimately led to sanctions under FRCP Rules 26 and 37.

From the outset, R & R knew that the Insurance Company’s adjustors’ claim logs and notes would be a key source of evidence in proving that they were undercompensated. They initially requested all documents pertaining to the Insurance Company’s underwriting and their own coverage and fire claim. They did not get everything they were looking for, so they sent letters clarifying that they wanted all “electronic or handwritten daily activity records/logs which are generally kept with an adjuster’s notes and telephone call records.” 251 F.R.D. at 522.

Again, R & R’s counsel did not receive what they were looking for. Continue reading »