e-Lessons Learned

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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Defendant Maxxam was accused of willfully destroying evidence that the government claimed would have aided its case. The government alleged that Maxxam, a lumber company, fraudulently prepared a report that overstated the minimum amount of trees it could safely cut down while remaining economically viable. The government further alleged that VESTRA, a consultant retained by Maxxam’s law firm, willful destroyed key data used in this report.

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Plaintiff companies Laethem Equipment company and Laethem Farm Service Company (collectively “Laethem”) were involved in a lawsuit with Deere and Company (“Deere”) involving claims of breach of contract, tortious interference with business relationships and violations of state trade secret law. The judge ordered the parties to secure all electronically stored information and metadata and to file a data log, summarizing the secured data, with the court.

Pursuant to discovery requests, Laethem allowed Deere to go to Laethem’s attorney’s office in order to copy documents. During this session, Laethem inadvertently disclosed several documents that were protected by the attorney-client privilege. Deere sought a court order that Laethem’s actions constituted waiver of the privilege.

Deere argued that because Laethem turned over disks containing privileged documents and delayed in objecting to the disclosure, Laethem had waived attorney-client privilege with respect to the documents contained on the disks. Continue reading »

Back in April, the founder of e-Lessons Learned, Fernando M. Pinguelo, sat down with Allison L. Brecher and Shawnna Childress to discuss their new e-discovery book eDiscovery Plain and Simple. Now that the book has been officially released, we’d like to highlight it by posting Fernando’s interview along with a brief description of the book.

You can click here to read the book review/interview conducted by Fernando M. Pinguelo

Description from the Breacher/Childress web site: Continue reading »

This past Tuesday (June 30), U.S. CIO Vivek Kundra formally launched the new U.S. Federal IT Dashboard at the Personal Democracy Forum 2009 in New York City. This greatly anticipated website provides citizens with greater transparency involving government spending, something that many Americans have been asking for in recent years. This increased ability for public scrutiny will likely result in greater accountability and responsibility when it comes to the spending of the country’s $40 billion budget for federal technology projects. This enormous budget has helped secure the federal government as the largest single buyer or technology in the world. The website tracks all federal technology projects, offering a detailed descriptions of each, up-to-date evaluation reports and contact information for each project’s manager.

At the unveiling Kundra exuded enormous confidence and excitement about the project, explaining “[N]ow, for the first time, the entire country can look at how we’re spending money and give us feedback. We’re going to tap into some of the best ideas and the best thinking.”

Kundra and his team even took the project a step further when they utilized the popular online video site YouTube to further advertise the dashboard, tapping into the site’s millions of viewers. This short video includes an introduction to the dashboard, an explanation of its goals, and a basic explanation how it should be used. Clearly, this website and its accompanying video are a good model that others in the IT sector should emulate. The increased transparency and approachability of these projects is sure to result in positive feedback; with proper execution, the generated response could bring substantial financial profits to private IT.

The site is sure to be a success and has led many to speculate that similar dashboards for education and/or military spending may be launched in the near future.