e-Lessons Learned

Suppose you’ve got a business.  Not just any business, however, but a state-of-the-art business.  Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner.  Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data.  You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email.  You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers.  You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side.  You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible.

Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit?  Perhaps even a completely bogus, frivolous lawsuit.  Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.   Continue reading »

Don’t take your discovery obligations lightly!  When your adversary requests documents from you during discovery, it becomes your obligation to undertake a thorough search of your files (electronic or otherwise) to locate those documents and produce them in a timely manner and in the format requested by your adversary.  Failing to do so could cost you more than $25 Million dollars, as it did to the plaintiff in B & G Management v. Lexington Insurance.  Can you afford that?

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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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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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We’re all familiar with the saying “Don’t judge a book by its cover.”  Perhaps you’ve fallen victim to this wise cliche yourself as you wander through a Barnes & Noble and a fantastic drawing on some random novel sparks your attention, ultimately luring you to the register.  At home, you eagerly crack open the book and realize it’s not as fascinating as the cover had led you to believe.  Doing some research on the book would’ve saved you some money, right?

As you’ll see, the Plaintiff in Lake v. City of Phoenix does everything right.  After receiving a hard-copy of a document and smelling something fishy, he requests metadata of the electronic version to substantiate the document’s authenticity.  Lake is told that he can’t get the metadata.

Dead-end?  Nope.  If there’s a will there’s a way.  By requesting the emails passed between his superiors and police reports, Lake is able to access information that may explain better the shadiness (or lack thereof) behind his demotion at work.

Procedural History

After filing an Equal Employment Opportunity Complaint against “the City” (Not to be confused with the MTV show), Phoenix Police Officer David Lake submitted various requests for public records to the City.  The City failed to produce several records related to his request and delayed the production of other records.  So what does one do?  Sue. Duh!

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For those of you that have been living under an e-discovery rock, and therefore have never heard of Zubulake, please continue reading.

The Zubulake decisions in 2003 through 2004 shook the world of e-discovery. Litigators, law professors, and all kinds of pundits, tuned in and took notice: U.S. District Judge Shira Scheindlin, one of the most brilliant trial judges on the bench today, and unfortunately for UBS, an e-discovery expert threw the gavel at UBS on this one. Zubulake walked away from this case with close to $30 million and UBS was left with a deep hole and lots of sanctions.

But we are skipping ahead in our saga. The case started as a common gender discrimination suit brought by Zubulake against her former employer, UBS. Continue reading »

In a recent law review article, The Honorable Shira A. Scheindlin, U.S.D.J. (Southern District of New York) and Jonathan M. Redgrave address the recent revisions to Rule 53 and discovery rules, and articulate appropriate uses of special masters in the growing world of e-discovery. They predict eDiscovery Special Masters to be the next big thing in e-discovery.

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You go to Starbucks and order a coffee. The barista makes you a plain, black coffee. But in reality, when you said “coffee,” you actually meant a grande half-caf, half-skim, iced triple-shot white chocolate mocha with one Splenda. You complain to the barista that you didn’t get what you ordered, only to find out that you got exactly what you requested: a coffee. Then you realize your mistake: you weren’t specific. Such was the problem with the plaintiff’s discovery request in D’Onofrio v. SFX Sports.

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Good planning makes for less litigation.

What happens when a company accused of patent infringement agrees to certain electronic discovery procedures and then fails to follow those procedures? The answer is very simple: the court turns into the Incredible Hulk! Court get angry! Court smash! Court bash!

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Kentucky Speedway filed suit against the National Association of Stock Car Auto Racing (“NASCAR”) alleging that NASCAR had monopolized the markets for premier stock car racing and premier stock car racetracks.  Speedway claimed that NASCAR “starved competing racetracks of revenue” so it could purchase the tracks at a reduced price.  During the discovery phase, Speedway sought to obtain documents from NASCAR pertaining to, among other things, its “growth strategy, attempts to expand, and attempts to stifle competition by other major motorsports facilities.”  A subsequent e-discovery dispute arose when Kentucky Speedway requested that NASCAR produce the metadata concerning the author and document creation information for all documents that were previously produced through discovery.

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