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 »
Citation: NEW California Civil Procedure eDiscovery Rule Amendments
Employee/Employer Implicated: Everyone in California and Subject to a lawsuit in California; Inhouse Counsel; Outside Counsel; Information Technology Employees
e-Lesson Learned: Before responding to discovery requests for ESI, counsel should have a comprehensive understanding of his or her client’s information technology systems.
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 »
Often I am asked if certain arrangements and deals are enforceable without a written contract. Sometimes, I am asked that question with a little bit of layman lawyering as to whether the so called “statute of frauds” (this is an ancient statute that essentially says certain classes of contracts) can cut off a contract claim. First, let me say that the law is blind, but not dumb. If there was a real arrangement oral or otherwise, rarely will a court will simply tell the plaintiff that he/she is without a paddle.
Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
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: Heriot v. Byrne, 2009 WL 742769 (N.D. Ill., March 20, 2009) T.A. Ahern Contrs. Corp. v. Dormitory Auth. of State of New York, 2009 NY Slip Op 29125, 1 (N.Y. Sup. Ct. 2009)
e-Lesson Learned: An independently run eDiscovery project performed by qualified and competent vendors can be useful when there’s “loads” of documents to sift through. However, be careful because their mistakes become YOUR mistakes and may result in costing YOU.
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 »
Employee/Employer Implicated: Correctional officer and prison officials
e-Lesson Learned: Failure to preserve electronically stored information once the duty to preserve evidence has been triggered may lead to spoliation sanctions.
Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins? Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.
In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers. After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault. Defendants never provided the prisoner with the copy. Continue reading »
e-Lesson Learned: While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.
Trouble lurks when you rely on ‘a pure heart and an empty head’
Now, I know what you’re probably thinking. “Revisit Zubulake!? But that was so long ago! Surely everything has changed!” (Sarcasm)
To be fair, things were quite different back then – no iPhones, no clouds (in the IT world), no Google Any-Application-You-Can-Think-Ofs. The technology landscape has certainly evolved since Zubulake became a household name.
But (at least) two things haven’t changed: Judge Shira A. Scheindlin’s view of eDiscovery due diligence and parties’ (and their lawyers’) continued failure to meet these expectations.
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."
143 Comments | 
More... | 
Permalink
Tagged as: Discoverability, Meet & Confer, Production of Data, Sanctions, Waiver
