e-Lesson Learned: A document-heavy case imposes substantial discovery burdens on both parties. But, if the court feels the hours spent on production are excessively high, and that full compensation for such work would inflate the total fee award to an unreasonable extent, the court will decrease attorney fee requests to a more reasonable amount.
Twitter This: Don't be overzealous when it comes to ediscovery. Leave no stone unturned or theory untested not always the best mantra
In this contract dispute, the prevailing defendant, ChoicePoint, moved for attorneys’ fees, including fees for document review and production.
The plaintiff, Corinthian Mortgage Corporation, d/b/a, SouthBanc Mortgage (“SouthBanc”), and Defendant ChoicePoint Precision Marketing, LLC (“ChoicePoint ”), a mailing list broker, entered into an agreement (the “Service Agreement”) wherein ChoicePoint agreed to assist in developing a methodology for creating lists of names and individuals to whom SouthBanc could mail targeted promotional materials.Soon after, Theresa Ritter (“Ms. Ritter”), Vice President at SouthBanc, was terminated.Ms. Ritter formed a competing company in Virginia, Summit Financial LLC (“Summit”).Subsequently, Summit requested names from ChoicePoint, using name selection criteria similar to SouthBanc’s. ChoicePoint provided the requested information to Summit and continued to supply names.Of course SouthBanc was not happy and sued ChoicePoint, alleging that ChoicePoint violated the covenant of good faith and fair dealing (Count I), violated Massachusetts’ Unfair Trade Practices Act (Count II), and breached the Contract between the parties (Count III). Continue reading »
e-Lesson Learned: An attorney should take reasonable efforts to preserve relevant data upon anticipation of litigation.
Twitter This: Zubulake IV: A new hope (for cheaper litigation)
Our fourth installment of our Zubulake series addresses two key critical issues in the e-discovery process: (1) the scope of the duty to preserve and (2) remedies for failure to preserve.
(1) Scope of the Duty to Preserve
The Zubulake IV opinion states that upon anticipation of litigation, a party to a lawsuit has the
“…duty to preserve what it knows or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence is reasonable likely to be requested during discovery and/or is the subject of a pending discovery request.”
Employee/Employer Implicated: Laura Zubulake, a terminated employee of Defendant UBS Warburg LLC; Owners/Executives and IT Departments
e-Lesson Learned: This case is a wake-up call for organizations and individuals: If your electronic records are in a mess, you better clean the mess up because courts are no longer handing out free “undue burden” passes, which previously excused defendants from having to produce documents at large costs.
Twitter This: Zubulake I: The Epic Saga of the Discovery of E-Discovery
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 »
Citation: Peskoff v. Faber, 251 F.R.D. 59 (D.D.C. 2008)
Employee/Employer Implicated: Owner/Executive
e-Lesson Learned: Make all reasonable efforts to preserve relevant data for pending or reasonably anticipated litigation, and if you can’t, be prepared to explain why. This includes having a data management protocol in place for managing the routine maintenance and deletion of data, stopping automated maintenance mechanisms and hiring experts to handle the preservation of relevant data at first notice of potential litigation, and performing a thorough search of discoverable data on the first attempt.
e-Lessons Learned is proud to bring you our first Video e-Lesson Learned, presented by Brett Van Benthysen of Seton Hall University School of Law. Click on the embedded video below to begin playback, and check out the e-Lessons Learned article it was based on by clicking here.
Employee/Employer Implicated: Outside Counsel for the Defendant
e-Lesson Learned: Any motions for cost sharing need to be filed prior to the production of the data in order to comply with the federal rules. Parties are not at liberty to reserve the right to request that the opposing party share the costs of compliance.
The defendants in this case moved for an order requiring the plaintiffs to pay at least 50% of its third party vendor electronic discovery costs.With these limited facts, this is a perfectly reasonable request, such as seeking a protective order, or seeking protection under Fed. R. Civ. P. 26(b)(2)(B) and 26(c).However, the defendants failed to comply with either of these.Instead, the defendants sought to an order requiring the plaintiffs to pay at least 50% of its third party vendor electronic discovery costs after producing the information. Continue reading »
Employee/Employer Implicated: Defendant Playmate (Miss December 1980), Playmate of the Year (1981), and Personal Website Operator
e-Lesson Learned: Federal Rule of Civil Procedure 34 governs the scope and procedure for the discovery of electronic documents. Even before the rule was specifically amended, the definition of “documents” is broad enough to encompass electronically stored documents. If Defendant had printed any emails relevant to the litigation, they would be discoverable, and therefore it is not a big jump to step back and include the original electronic format of the document within the scope of the discovery rules.
Prior to December 1, 2006, the Federal Rules of Civil Procedure did not include any reference to electronic documents or electronically stored data.However, when Playboy discovered that one of its Playmates was deleting relevant emails relating to a pending litigation, it sought to use the discovery procedures to forensically analyze the Playmate’s hard drive.Always an innovator, and on the cutting edge of electronic media exploration, Playboy lead the charge that ultimately resulted in countless electronic discovery cases and the 2006 amendments to the Federal Rules of Civil Procedure.
Employee/Employer Implicated: In-House and Outside Counsel
e-Lesson Learned: Don’t slam the door on discovery requests because it will ruin your credibility and ultimately hurt your client more.
Do you think that Elizabeth Arden’s Red Door is just a perfume? Think again. It might just be a metaphor for obstructing discovery requests. It’s too bad the court wasn’t so amused.
In this Zubalake-esque case, the plaintiff commenced an action in 2006, alleging that he was unlawfully terminated by Elizabeth Arden in violation of the federal Age Discrimination in Employment Act. As such, the plaintiff requested the production of Department Stores Fragrance Group (DSFG) sales reports that tracked employee performance but Elizabeth Arden refused to produce these claiming that they could not find the reports. The court didn’t buy it. Continue reading »
Employee/Employer Implicated: Counsel demanding production of electronic discovery without paying for it.
e-Lesson Learned: In New York, the party seeking electronic discovery is responsible for the costs of producing the information. Under this system, the courts need only determine whether the information itself is discoverable, and if so, whether the party seeking discovery is willing to pay for its production.
In New York, the party seeking electronic discovery is responsible for the costs of producing the information.Under this system, the courts need only determine whether the information itself is discoverable, and if so, whether the party seeking discovery is willing to pay for its production.This is in sharp contrast to the default production system in the federal courts, where the parties bear their own production costs.
Citation: Wyeth v. Impax Labs, Inc., 248 F.R.D. 169 (D. Del. 2006)
Employee/Employer Implicated: Defendant
e-Lesson Learned: A discovering party should not waste time trying to discover metadata. Metadata is presumed to be undiscoverable, and therefore the data will only be available if the party can show a particularized need for the data. And since metadata is presumed to be undiscoverable, a party may hide any metadata related to the produced documents by converting the documents to a TIFF or PDF. However, the producing party must preserve the integrity of the electronic documents it produces in the case that the other party does demonstrate such a particularized need for the data. The failure to do so will not support a contention that the production of documents in the native format is overly burdensome.
Metadata is presumed to be undiscoverable, and therefore a party should not waste time and resources trying to obtain such data unless there is a need for it.
Wyeth v. Impax Labs arose from a dispute over discovery production. The original lawsuit was a patent dispute between the parties. Before the court was the Defendant’s, Impax, motion to compel discovery production.
Employee/Employer Implicated: Defendant’s Solicitor in charge of disclosing required documents
e-Lesson Learned: 1) A disclosing party cannot claim that an additional search will produce only duplicate documents. If a class of documents was excluded from an initial search, a party cannot claim a defense that the documents are merely duplicates of the documents already produced. The search will be required if the initial search was unreasonable.
2) A disclosing party should not conduct a keyword search unilaterally without first conferring with the opposing party. The court will determine what a reasonable search is, and if the search is unreasonable, an additional search will be required. Conferring with the other party beforehand to determine their intended scope will limit the possibility that an additional search will be required at an additional cost.
This case originated from a dispute during an attempt to deregulate the telecommunications industry in the Caribbean. The claimants are mobile phone companies in the Carribean who sought to connect to interconnect their phone lines to the existing landline provider’s pursuant to the newly issued licenses. The defendants are the incumbent landline telephone providers who relinquished their exclusive telecommunications licenses in agreements with the relevant governments. The claimants argued that the defendants intentionally delayed in granting the interconnections so as to benefit financially and competitively. The claimants also argued that this deliberate and unlawful delay was part of a conspiracy between all or at least some of the defendants. The defendants argue that these claims are unsupported and baseless.
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Tagged as: Cost Sharing & Shifting, Production of Data, Spoliation
