Authored By: Phil Ryan

Citation: Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., 270 F.R.D. 223 (D. Md. Oct. 28, 2010)

Employee/Employer Implicated: Miscellaneous

e-Lesson Learned: When faced with objections to Rule 34 production requests, the proper response is to meet and confer with opposing counsel and then, if necessary, seek an order from the court. Parties should not resort to subpoenas to compel discover.

Tweet This: When faced with discovery objections, don’t put the subpoena-cart before the discovery-horses!

So you’re in the discovery stage of litigation and you make a request but the other side won’t produce. No problem you think, I’ll just subpoena ‘em. WRONG. In Richardson v. Sexual Assault/Spouse Abuse Research Ctr., Inc., Patrick Richardson filed a complaint against the Sexual Assault/Spouse Abuse Research Center (“Research Center”) alleging intentional infliction of emotional distress, tortuous interference with Richardson and his ex-wife Sheri Richardson’s divorce proceedings, and gender discrimination in violation of the Fourteenth Amendment and the Maryland State Constitution.

Authored By: Gina Barbieri

Citation: Oxxford Information Technology, Ltd. v. Novantas LLC, 2010 N.Y. App. Div. LEXIS 8496 (N.Y. App. Div. 1st Dep't Nov. 16, 2010).

Employee/Employer Implicated: Owner/Executive, information technology manager, C-level executive, owner, counsel (in-house & outside counsel)

e-Lesson Learned: The best way to protect trade secrets and other discoverable information is through a bargained for confidentiality agreement, which will likely be upheld in its original form

Tweet This: “If you bargain in favor of your privacy, you won’t fall victim to a bait-and-switch”

When confidential business information comes into play, it is imperative that parties diligently bargain to protect their interests. Once an agreement is reached the parties will be expected to uphold their side of the bargain based on the other side’s reliance.

Authored By: Michael Tucker Jr.

Citation: Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)

Employee/Employer Implicated: In-House Counsel; Outside Counsel

e-Lesson Learned: Litigating parties have a mutual obligation to discuss the issue of electronic discovery at the discovery conference. Failure to discuss the issue results in both heightened scrutiny of a later motion to compel discovery of ESI and, if the motion fails, sifting through 4,000 pages of e-mail printouts.

Tweet This: Discuss ESI format at your discovery conference or be happy with the format you get.

From 2001-2009 Melissa Brinckerhoff was a volunteer firefighter in the town of Paradise, California. Volunteer is a misnomer however, as the town’s firefighters were entitled to benefits and some pay. These volunteers are also protected by various anti-discrimination statutes. Brinckerhoff was fired in 2009. She filed an action claiming that the fire department extended her probationary period and later terminated her because of her gender and claimed disability based on a back injury.

Authored By: MAH

Citation: Newman v. Borders, Inc., 257 F.R.D. 1 (D.D.C. 2009).

Employee/Employer Implicated: Large Bookstore, Outside Counsel

e-Lesson Learned: Rule 30(b)(6) requests must specify whether electronically stored information retention policies will be within the scope of the deposition testimony sought.

Tweet This: Ask and they shall answer—a deposition notice should define the scope of testimony! --> http://ellblog.com/?p=2101

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.

Authored By: Laura J. Tyson

Citation: Wixon v. Wyndham Resort Dev. Corp., 2009 U.S. Dist. LEXIS 86337 (N.D. Cal. Sept. 21, 2009)

Employee/Employer Implicated: Outside Counsel, In-House Counsel, Document Custodians,

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.

Tweet This: Look in all nooks & crannies when agreeing to custodian-limited production of docs --> http://ellblog.com/?p=2098

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”?

Authored By: Mike G

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.

Tweet This: Lawyers must know the ins and outs of their clients IT departments…at least in CA they do. --> http://ellblog.com/?p=2092

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.

Authored By: Laura C.

Citation: William A. Gross Constr. Assocs., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)

Employee/Employer Implicated: Counsel, Third Parties, Document Custodians

e-Lesson Learned: When it comes to conducting searches of email and electronically stored information, New York District Courts expect counsel to cooperate and, with the input of document custodians, carefully develop keywords, which should then be quality control tested to assure accuracy and eliminate false positives.

Tweet This: Wake up call for counsel re email and keyword searches: SDNY ain’t gonna take it any more! --> http://ellblog.com/?p=1983

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.

Authored By: Scott Paterson

Citation: Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. 2008)

Employee/Employer Implicated: Outside Counsel that failed to request ESI with metadata.

e-Lesson Learned: At the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. However, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests for metadata.

Tweet This: Don’t Forget Your Metadata, The Burden Later May Be Too Much

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.

Authored By: Katherine Sparks

Citation: Krause, Jason. “In Search of the Perfect Search”, ABA Journal, April 2009

Employee/Employer Implicated: Attorney Conducting E-discovery Searches

e-Lesson Learned: Key word searching is not enough to find all relevant information from a source of electronic discovery. Members of the TREC research team are testing several different search models and have identified a few best practices for lawyers working with electronic discovery.

Tweet This: TREC Legal Track: On the Frontiers of E-discovery --> http://ellblog.com/?p=1715

Unfortunately, the key word search is ineffective for e-discovery. A keyword search often misses many of the relevant documents. However, the keyword search is the current standard for searches. Does anything work short of hiring an expert? Jason Baron and Doug Oard of the 2009 TREC Legal Track research team are addressing the many questions plaguing the field of E-discovery by testing the current E-discovery technology and various search methods. With the help of lawyers, researchers, and scientists, the TREC researchers are seeking the perfect search for mining relevant e-discovery documents. The shocking news – the technology tested from over 20 e-discovery vendors proved no better than Boolean keyword searches.

Authored By: Sheetal Patel

Citation: S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009)

Employee/Employer Implicated: Government Agency and Government Counsel

e-Lesson Learned: When a government agency initiates litigation, it is also required to follow the same discovery rules that govern private parties.

Tweet This: Court to SEC: Guess what? You are not special --> http://ellblog.com/?p=1639

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.