eDiscovery Navigator

April Edition of Notable Cases and Events in E-Discovery
by Sidley Austin LLP

This update addresses the following recent developments and court decisions involving e-discovery issues:

1. A District of Kansas decision finding that Kansas does not recognize an independent tort for intentional spoliation of evidence, absent an independent duty to preserve evidence arising from a contract, voluntary assumption of duty, or some special relationship;

2. A District of Maryland decision holding plaintiff and its counsel jointly and severally liable for defendant’s fees and costs for making an inaccurate discovery certification under Fed. R. Civ. P. 26(g) and for failing to provide responsive electronically stored information (“ESI”) in an appropriate format for production; and

3. A Northern District of California case deciding that information regarding emails containing certain search terms, as well as email subject lines, are protected “content” under the Stored Communications Act and not subject to production by email providers.

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.))."