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 »

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 »

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 »

Dead men tell no tales, but their bodies provide enough evidence to paint a graphic picture.  The same is true of deleted files on a computer.  Missing files can carry the inference that the evidence was only destroyed because it would have been damaging to the party responsible.

In Paris Business Products, Inc. v. Genisis Technologies, LLC (“Paris”), Genisis Technologies, LLC, (“Genisis”) was subject to a discovery order requiring it to preserve all relevant data on company-owned computer hard drives.  Despite this order, Genisis’ executive officers allegedly were responsible for: (1) deleting the company hard drives by reformatting them; and (2) physically removing and destroying some hard drives. Continue reading »

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.

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Tech-savvy business owner Dmitri Nikitin received a judicial tongue-lashing  and an adverse inference instruction  after he destroyed emails potentially relevant to a pending lawsuit brought by a Korean corporation. Not buying Nikitin’s “hackers” defense, the Court said that Plaintiff Optowave was entitled to an adverse jury instruction at trial against Nikitin’s company Precision Technology Group. “This sanction,” the Judge wrote, “will serve to cure the unacceptable actions of Nikitin, while allowing the case to be decided on the merits.”

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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.

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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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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.

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In this recent opinion, one Texas Court applied the Zubulake cost-shifting factors to a shampoo company’s unsupported argument that the opposing party should have to share the costs of performing OCR… and booted their argument to the curb.

At the pre-trial Case Management Conference, the Court ordered the parties to submit estimates of the costs involved in the production of documents in searchable Tagged Image File Format (“TIFF”) with Optical Character Recognition (“OCR”) before it made a ruling on the format of electronic discovery.   Continue reading »