Electronic Discovery Navigator

E-Discovery Rulings: 2008 in Review

E-Discovery Rulings: 2008 in Review

"In 2006, courts and litigants braced for the electronic data discovery amendments to the Federal Rules of Civil Procedure. Conventional wisdom suggested pandemonium would ensue as parties wrangled over the meaning and relative impact of the amended rules on their respective cases.

Instead, in 2007, courts quickly responded with several rulings that clarified the amended rules. Then in 2008, the EDD community saw its most active year to date, with opinions delving into the technology for search and retrieval, the meet-and-confer process and the enactment of Federal Rule of Evidence 502 to combat waiver of attorney-client privilege resulting from the inadvertent production of electronically stored information.

While the usual suspects -- a small group of active judges -- continue to write opinions that further guide and shape the preservation and production of ESI, several opinions in 2008 were drafted by relatively new players taking a more active role.

Many of 2008's "must read" opinions came from District of D.C. Magistrate Judge John Facciola and District of Maryland Judge Paul Grimm. Some have suggested the two have a friendly rivalry aptly called "the Battle of the Beltway," however, the cases are more likely testament to both judges' passion and expertise in the area."

Discovery: ESI Rules Go Wide

Discovery: ESI Rules Go Wide

"We have long seen general principles of discovery inform the development of the law in the realm of electronic discovery. With Magistrate Judge Paul Grimm's recent decision in Mancia v. Mayflower Textile Services Co., 253 F.R.D. 354 (D. Md. 2008), however, we now see that the lessons of e-discovery have the potential to spur enhancements in overall discovery practices.

Regular readers are by now familiar with Grimm's work. From his bench in the U.S. District Court for the District of Maryland he has provided some of the most important rulings on e-discovery of the last few years,[FOOTNOTE 1] and we have not hesitated to pass along his wisdom.[FOOTNOTE 2] His latest opinion in the field, however, has even broader implications.

On Oct. 15, Magistrate Judge Grimm issued an opinion in Mancia that sends all attorneys engaged in discovery a message that we have been preaching with respect to electronically stored information for years: Advanced knowledge of the data in your control and cooperation with your adversary will get you everywhere. What makes Mancia notable, however, is that it suggests such cooperation, in addition to reflecting best practices, may be mandated by the Federal Rules.

This ruling may come as a surprise to attorneys who have dealt primarily with "traditional" paper discovery. But for those who are familiar with the Federal Rules regarding e-discovery, and the procedures and practices that have developed thereunder, it appears Magistrate Judge Grimm has simply taken the lessons learned from dealing with ESI and translated them to broader discovery practice."

Defendant Dodges an EDD Bullet

Defendant Dodges an EDD Bullet

"While the courts are becoming more familiar with the legal and technical issues arising from electronic discovery, there is still no shortage of perplexing "e-issues" confronting judges. In a recent decision rendered by Eastern District Magistrate Judge Arlene R. Lindsay in Toussie v. County of Suffolk, 2007 WL 4565160, the court was admittedly "challenged to reconcile a party's obligation to preserve relevant evidence with the unique nuances of electronically stored information."

More specifically, Lindsay had to determine whether the Suffolk County "should be penalized for losing and/or destroying its e-mails" as requested in discovery and as otherwise relevant to the case."

New York Courts Add Weight to E-Discovery Law

New York Courts Add Weight to E-Discovery Law

"New York appellate and trial courts have recently issued a series of significant decisions concerning electronically stored information, and they should serve as both a primer and a well-heeded warning to practitioners as to how best to properly deal with the transmission and use of such information in litigation."

Access to Computer Hard Drive Images Not an Inherent Right During Litigation says Forensic Expert Greg Fordham of K&F Consulting

Access to Computer Hard Drive Images Not an Inherent Right During Litigation says Forensic Expert Greg Fordham of K&F Consulting

"Although parties to litigation have a duty to preserve electronic data, they may not be required to produce the data that has been preserved.

In a recently published article, Access to Computer Hard Drive Images, Fordham analyzes two decisions where courts have denied production of the entire hard drive. (See, Peskoff v Faber, 2007 WL 2416119 (D.D.C.) and Calyon v Mizuho Securities USA, Inc., Slip Copy, 2007 WL 1468889 (S.D.N.Y.))."

Kroll OnTrack Case Law List

To keep up with the development in ediscovery law, you should check out Kroll OnTrack Case Law List.  I find it to be very handy, and its looks comprehensive.  The link is on this page in the middle column under "More Goodies."

Judge Provided Guidance on Admissibility of Electronically Stored Information

Lorraine v. Markel Am. Ins. Co., Case No. PWG-06-1893 (D. Md. May 4, 2007)

Chief U.S. Magistrate Judge Paul W. Grimm of the district court in Maryland recently shed light on the admissibility of electronically stored information (ESI), an issue "[v]ery little has been written" about, even though a lot of money and manpower are used to get ESI.

For the last several years there has been seemingly endless discussion of the rules regarding the discovery of electronically stored information (“ESI”). . . .   Very little has been written, however, about what is required to insure that ESI obtained during discovery is admissible into evidence at trial, or whether it constitutes “such facts as would be admissible in evidence” for use in summary judgment practice. FED. R. CIV. P. 56(e).  This is unfortunate, because considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted. The process is complicated by the fact that ESI comes in multiple evidentiary “flavors,” including e-mail, website ESI, internet postings, digital photographs, and computer-generated documents and data files.

Court Ordered Alleged Infringer to Produce All Missing Versions of Source Code

3Com Corp. v. D-Link Systems, Inc., Case No. 03-cv-02177 (N.D. Cal. Mar. 27, 2007)

In this patent infringement action, Plaintiff 3Com Corporation ("3Com") moved to compel production of documents and sanctions against Defendant-Intervenor Realtek Semiconductor Corporation ("Realtek").

Of particular interest is the discovery dispute over the source code of the Realteck products that allegedly infringed 3Com's patents.  Realtek produced the current and several other versions of the source code and stated that "it has now produced all the versions it maintains."  3Com argued that it has "good reason to believe" otherwise.  In fact, Realtek did not dispute 3Com's claim that although many versions of generation 3.xx were produced, versions of generations 4.xx, 5.xx, and 6.xx were not.  Realtek simply stated "[t]here can be many explanations for skipping a number when mulitple versions of the code are created," and did not expound on those "explanations."

Court Denied Motion for Forensic Inspection of Hard Drives

Memry Corp. v. Kentucky Oil Tech., N.V., Case No. 04-03843 (N.D. Cal. Mar. 19, 2007) (Not for Citation)

Counterclaim-Defendant Schlumberger Technology Corporation ("STC") moved to compel Defendant/Counterclaim-Plaintiff Kentucky Oil Technology ("KOT") to produce an intellectual property evaluation conducted for one of KOT’s predecessors-in-interest and original documents, including computer hard drives.

Of interest is the latter request in which STC sought KOT's computers and storage media for forensic inspection by a third party consultant pursuant to a protocol to be determined by the parties or the court.  STC's bases for the request are KOT's "selective and incomplete document production" and failure to preserve hard drives.  The court denied STC's request for three reasons.

Court Ordered Non-Party to Pay Cost of Retrieval of E-Mails and Plaintiff Reasonable Cost of Production

United States ex rel. Parikh v. Premera Blue Cross, Case No. 06-MC-00097 (S.D. Ohio Mar. 16, 2007)

PricewaterhouseCooopers ("PwC") is a non-party in this discovery dispute.  Defendant Premera Blue Cross ("Premera") hired PwC to audit its receipt of Medicare payments.  In November 2006, PwC was ordered by subpoena to produce all emails between it and Premera.  PwC produced some but not all of the requested electronically stored information ("ESI").  So, qui tam Plaintiff filed a motion to compel.