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Electronic Discovery


Surveillance in the Twenty-first Century

Covert surveillance of personal injury claimants has undergone revolutionary changes since the days of VHS videotape. Now, more than ever, defense attorneys and claims professionals must be aware of the latest technology, methodology, social implications, and legal consequences of surveillance. From the reduced size and increased power and quality of cameras to the ability to transmit images and video instantaneously to remote locations, today’s technology provides a higher quality end product and more control over the surveillance process than ever before. That increased level of control brings the increased responsibility of ensuring that surveillance is ethical, efficient, and productive.

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Should I Be Your Friend? The Ethical Implications of Social Media on Litigation Social media usage statistics are staggering. Facebook has over 800 million active users, up 200 million over the last year. January 3, 2012, Digitalbuzzblog.com. Twitter has over 100 million active users, and LinkedIn over 64 million in North America alone. Id. YouTube is no exception—"[o]ne hour of video is uploaded to YouTube every second—that's 24 hours of video every 24 seconds, 60 hours a minute, 9 months every 2 hours, a decade every single day and a century every 10 days." February 13, 2012, thesocialskinny.com. If Facebook were a country, it would be the world's 3rd largest. Social Media Revolution 2011, youtube.com. Not surprisingly, social media usage impacts litigation. A recent U.K. survey found that more than a third of divorce filings contained the word Facebook in them, and over 80 percent of U.S. attorneys see the effects of social media in their practice. May 21, 2012, blogs.smartmoney.com. view more
Digital Curation and E-Discovery Since the codification of electronic discovery requirements in 2006 by an amendment to the Federal Rule of Civil Procedure 26, litigants have experienced increasing discovery complexity and cost. In a recent RAND report (Nicholas Pace & Laura Zakaras, Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery, RAND, 2012), the authors reported that for the cases they studied, e-discovery costs ranged from $17,000 to $27 million, with a median of $18 million. The same authors estimate that about 70 percent of the cost of e-discovery arises from the review process, which includes a relevancy review often conducted by attorneys and paralegals. view more
Navigating Cross-Border E-Discovery and European Privacy Laws

With the ever-increasing expansion of multinational corporations and globalized business transactions, it is exceedingly likely that attorneys will, at some point, have to conduct cross-border e-discovery on behalf of their clients. In nearly all commercial disputes in U.S. courts, a substantial amount of electronically stored information ("ESI") is demanded and, if necessary, ordered to be produced. Complying with such requests poses great challenges when the information sought is located outside of the U.S. and foreign data privacy and discovery blocking statutes are involved. Being prepared for the complications and burdens associated with cross-border discovery is critical for any party to U.S. litigation with ESI located in non U.S. jurisdictions. This article provides an overview of the legal requirements and suggests guidelines and strategies to address such difficulties.

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The Duty to Preserve Electronic Evidence: When Is It Triggered and What Does It Encompass? Recently Judge Lee H. Rosenthal wrote that "Spoliation of evidence—particularly of electronically stored information—has assumed a level of importance in litigation that raises grave concerns." Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010). Indeed, it appears that motions for spoliation are increasingly becoming oft-used tools in the strategic plan of litigants. Thus, litigants, and particularly defendants— who are more often on the receiving end of a motion for sanctions—must be vigilant in their document preservation, retention, and deletion policies. The first and most fundamental step to ensuring compliance with the duties regarding evidence is to know the basics. Since there can be no spoliation without a duty to preserve the evidence, the fundamental question in the spoliation context is when the duty to preserve arises and what it entails.  view more
An Ounce of Prevention: The Importance of Legal Hold Notice and the Basics of Drafting an Effective Litigation Hold Letter

I was sitting at my desk. It was a summer morning and a client that I had advised many times in the past on contract matters sent me an email saying—"we were just served with a complaint, what should we do first?" Many attorneys are sent this type of email or receive a telephone call similar to this from their clients every day. Attorneys who find themselves in this position have to advise their clients on what the best first step is in successfully defending against a claim.

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Non-Parties Beware: You Are Not Immune from ESI Discovery Obligations A common reaction of a non-party receiving a subpoena to produce electronically stored information is, "Why should I have to spend money and time preserving, searching, and producing gigabytes of electronic data?  This is not my fight."  Justified as this response may

be, the non-party who adopts a "just say no" attitude in the face of a subpoena to produce ESI does so at its peril.  Both before and after the 2006 amendments to the Federal Rules of Civil Procedure—which, among other things, codified non-parties' duties with respect to subpoenas calling for the production of ESI—courts have made it clear that, although non-parties may be entitled to protections beyond those afforded to the parties to the litigation

with respect to the burdens of ESI production, they are not allowed to refuse such production with a unilateral claim of "undue burden" and without making an effort to negotiate.  Nor even are they in all cases entitled to shift the costs of responding to the subpoena to the requesting party.
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A Checklist for Analyzing a Motion for Sanctions If sanctions motions are on the rise in e-discovery cases, as some commentators have suggested, then e-discovery lawyers need help analyzing the issues once a motion for sanctions has been filed.    I developed a sanctions "Checklist" for use in the American College of e-Neutrals Training Program (see http://www.acesin.com for further discussion).   The Checklist was initially designed for an e-neutral—a third party neutral trained and experienced in alternative dispute resolution and e-discovery serving as either a special master, e-mediator, judge, arbiter, discovery referee, or discovery liaison for e-discovery disputes.   Then, the Checklist was reprinted with permission in a paper I wrote for the ABA Forum on Construction Industry in April 2011, and subsequently, I have received requests for permission to include the Checklist in other CLE material.  Consequently, I thought the readership for this newsletter might appreciate having the Checklist as a resource.    view more
The Aftermath of Pension Committee and Implications for Sanctions Related to Spoliation of Electronically Stored Information

Last year U.S. District Judge Shira Scheindlin, one of the country's most influential e-discovery jurists, issued a notable opinion that many believed would reshape the landscape she helped create with her Zubulake v. UBS Warburg decisions. In Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010), Judge Scheindlin imposed sanctions on a group of plaintiffs for their negligent or grossly negligent document preservation and collection efforts.  

Numerous courts have followed the lead of Pension Committee, but others are notably not. What implications does this have in the ever-changing world of spoliation related to electronically stored information ("ESI") and the sanctions that courts impose for such conduct?

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Are E-Discovery Costs Taxable to the Prevailing Party...Pennsylvania Court Says Yes! A district court in Western Pennsylvania has ruled that e-discovery costs are recoverable under 28 U.S.C. § 1920(4). In Race Tires America v. Hoosier Racing Corp.,the plaintiffs were ordered to pay $367,369.36 to defendants for their e-discovery costs that were necessary for the case. That is, pursuant to Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. §1920, fees for essentially copy costs may be assessed.  view more
No End in Sight: Thoughts on the Application of U.S. Electronic Discovery Rules to Foreign Corporations A lawsuit is filed in a federal district court in the United States. The defendant is a foreign corporation. The plaintiff seeks discovery, including e-mails and other electronic data. In the age of electronic discovery, this commonplace scenario brings into sharp focus a number of questions concerning electronically stored information ("ESI"), such as where does the e-data reside, who has access to, or custody of, the information, and what foreign privacy laws impact the ability or willingness of the entity to provide the information. Where foreign corporations are involved, conventional defense strategy is to resist broad disclosure of ESI based on foreign blocking statutes, comity concerns, or "custody and control" defenses. view more
E-Discovery Considerations in Drafting Settlement Agreements

Consider the following scenario. In a commercial dispute, a plaintiff sues a subsidiary and its parent company, pleading an alter ego theory against the parent. During fact discovery, the plaintiff agrees to settle with the parent company for a nominal sum.  As a condition of the settlement, however, the plaintiff insists that the parent company agree to assume certain obligations with regard to discovery, including the preservation and production of electronically stored information ("ESI"), and proposes a settlement agreement which includes a "continuing discovery obligation" ("CDO") clause. Eager to foreclose any further liability, the parent company agrees to the arrangement. Before executing the agreement, however, the settling parent company should assess the continuing obligations the plaintiff is proposing—particularly as they relate to electronic discovery—and determine whether those obligations make the settlement unpalatable. 

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Rambus II: How to Prevent Your Litigation Opponent From Drawing On May 13th 2011, the Federal Circuit addressed a split between the district courts of Delaware and California as to the proper spoliation standard. See Micron Tech., Inc. v. Rambus Inc., No. 2009-1263, 2011 WL 1815975, at *1 (Fed. Cir. May 13, 2011) (Micron II); Hynix Semiconductor, Inc. v. Rambus Inc., Nos. 2009-1299, 2009-1347, 2011 WL 1815978, at *1 (Fed. Cir. May 13, 2011) (Hynix II). In doing so, the Federal Circuit held the standard as applied in the Micron II matter was the appropriate one, affirmed the Delaware court's spoliation finding, and remanded the action for decision under the Micron II framework. Micron II, 2011 WL 181975, at *18; Hynix II, 2011 WL 181978,  at *2.  view more
Groundbreaking Model Ediscovery Order In Patent Cases Is Announced The Chief Judge of the United States Court of Appeals for the Federal Circuit recently announced an innovative model order for ediscovery in patent cases.  The model order sets presumptive limits on the amount of email that can be obtained in discovery, provides mandatory cost-shifting provisions for disproportionate discovery requests and contains automatic protection against inadvertent waiver of privilege or work product.  While the tremors from the model order will not cause the world of ediscovery to spin off its axis, they should cause practitioners everywhere to sit up and take notice. The model ediscovery order for patent cases can be found here. view more
The Limits of Rule 34(A): Mirroring the Hard Drive In general, under the Rules of Civil Procedure that govern discovery in civil litigation, parties may obtain discovery regarding any unprivileged matter relevant to the claim or defense of any party, as long as the requested material appears reasonably calculated to lead to the discovery of admissible evidence. Under the Federal Rules of Civil Procedure, the discovery of electronically stored information is specifically addressed by Fed. R. Civ. P. 34(a). This rule allows a party to request that another party "produce and permit the party making the request . . . to inspect, copy, test, or sample any . . . electronically stored information." Id. view more
The Call for Proportionality and Cooperation - The Federal Rules and Preventing E-Discovery Abuses Despite the inundation of case law discussing e-discovery issues over the course of 2010, courts are still in the nascent states of outlining the obligations and rights of parties when it comes to e-discovery. Recent opinions suggest the continued trend toward proportionality and cooperation of counsel in hopes of preventing e-discovery abuses. Notably, several courts have looked to the language of Rule 26 as well as The Sedona Conference for support of the concept of proportionality and cooperation. Notably, the decision in Tamburo v. Dworkin, No. 04C3317, 2010 U.S. Dist. Lexis 121510 (N.D. Ill., Nov. 17, 2010) embraces both the Federal Rules as well as the concept of proportionality, in providing a well-reasoned decision to support an order for phased discovery. Similarly, Judge Scheindlin's recent opinion in Nat'l Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, No. 10 Civ. 3488, 2011 U.S. Dist. Lexis 11655 (S.D.N.Y., Feb. 7, 2011), provides guidance regarding parties' obligations under Rule 26 and cooperation among counsel. view more
What E-Discovery Costs Are Recoverable?

A split of authority exists regarding the extent of e-discovery costs that a prevailing party may recover in federal court cases. A recent federal trial court awarded a large amount of e-discovery costs to the prevailing party; however, other courts continue to limit recovery of these costs by applying a different interpretation to the same cost recovery statute. Whether or not a broader array of e-discovery costs may be recovered will depend on several factors.

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E-Discovery in Canada

Just as in the United States, litigants in Canada have had to deal with the overwhelming prevalence of electronic documents in the discovery process in recent years. Gone are the days of our clients sending us a few boxes of paper to review for production and instead, we now receive CDs and hard drives full of thousands upon thousands of e-documents. In the common law Canadian provinces, there is generally an obligation on parties to litigation to produce all documents that are relevant to the matters in issue that are not privileged. This broad production obligation means that without guidelines to specifically address the scope of electronic production, litigants would often have to produce a volume of e-documents that would have a huge impact on the costs of and efficiencies of the already expensive and time consuming discovery process. Electronically stored information has created challenges for litigants and their counsel throughout Canada, which the bench and bar have been addressing by adopting principles and practices that are similar to those adopted in the United States.

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Personal Use of Employer Issued Computers Raises Complicated Privilege Issues If you are reading this article, you use a computer and most likely communicate using e-mail. If you communicate with your clients via e-mail, and those clients are using an employer-issued computer or e-mail account, your client may (or may not) be waiving the attorney-client privilege with respect to communications with counsel regarding personal legal matters.   Further, if your client is creating personal legal documents on an employer issued computer, the client may also be waiving the attorney-client privilege as to these documents. Thus, it is critical for every attorney to be aware of the potential for waiver under these circumstances. If you represent the employer in this situation, you should also be aware of the obligations you may have to disclose the potentially privileged information to the employee or former employee. These cases are also relevant as to what employers should be putting in their e-mail policies to establish the best argument for waiver to obtain e-mails that may result in a distinct advantage in litigation. view more

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