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In This Issue:
 Recent ESI Court Decisions
Court Orders Production in Native Format to Ensure Access to Metadata
Peacock v. Merrill, 2008 WL 176375 (S.D.Ala. Jan. 17, 2008). In this litigation, the defendants sought production of electronic tax information, and the plaintiff claimed the motion was moot, arguing she had already fully produced responsive documents. The defendants sought an exact replica of a floppy disk to determine if the plaintiff fully complied with the discovery request. Relying on FRCP 34(b)(i)-(iii), the court ordered production of disk files in native electronic format to ensure access to all metadata, determining that the date stamps of many of the documents were relevant .
Court Awards Forensic Expert Fees Arising From Deliberate Spoliation
Hawaiian Airlines, Inc. v. Mesa Air Group, Inc., 2008 WL 185649 (Bkrtcy.D.Hawaii Jan. 22, 2008). Previously in this breach of contract litigation, the court sanctioned the defendant for deliberate destruction of electronic evidence while under a preservation obligation by finding certain facts conclusively established in favor of the plaintiff. Subsequently, the plaintiff filed this motion for attorney's fees and costs. Finding the defendant's prior spoliation to be the cause of the expenditures of the plaintiff's computer forensic expert, the court awarded the related fees and expenses. However, as the additional expert witness fees, attorney travel, meal costs and computerized legal research fees were unrelated to the misconduct, the court declined to award them to the plaintiff.
Court Denies Motion for Reproduction in Original Electronic Format with Metadata Where not Originally Requested
D'Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008). In this employment discrimination case, the plaintiff brought suit against her former employer alleging disparate treatment based on gender, a hostile work environment and termination in retaliation for protected activities. After several discovery conferences and motions, the case was referred to Magistrate Judge John M. Facciola for management of the discovery process. In the current motion to compel, the plaintiff sought production of a document known as the "Business Plan" in its original electronic format with accompanying metadata and claimed the defendant caused deliberate spoliation of electronic records and failed to produce relevant documents. The defendant argued production of the Business Plan in its original format was not required by FRCP 34 absent a specific request and it never received any correspondence alleging deficiencies in its production. The judge determined that because the plaintiff failed to request the Business Plan in a specific format, she was precluded from seeking reproduction in a different format because the "if necessary" clause of FRCP 34 establishes the permissible scope of a discovery request but does not establish constraints on the manner of production. Additionally, the judge ordered an evidentiary hearing to assess the merits of the spoliation claim, finding the record simply too thin.
Court Orders Third-Party Production of ESI Despite Unduly Burdensome Argument
Simon Prop. Group, Inc. v. Taubman Ctr., Inc., 2008 WL 205250 (E.D.Mich. Jan. 24, 2008). In this suit involving securities and tort claims, the defendant contested the enforcement of third-party subpoenas. The defendant argued that compliance with the subpoenas would be unduly burdensome and expensive since the search terms provided by the plaintiffs resulted in the identification of over 250,000 files. The defendant claimed it would take three full-time employees four weeks to determine the responsiveness of those documents. The plaintiffs offered to narrow the scope of the search by time period, search terms and perhaps even limit the number of servers to be searched. The court granted the plaintiffs' motion to enforce the subpoenas, holding the requests were not unduly burdensome as discovery of electronic files are common place in business litigation.
Court Denies Parties' Motions for Spoliation Sanctions Based on Lack of Bad Faith
Diabetes Ctr. of Am. v. Healthpia Am., Inc., 2008 WL 336382 (S.D.Tex. Feb. 5, 2008). In this breach of contract case, both parties moved for sanctions, alleging spoliation and discovery abuses. The plaintiff's motion sought a spoliation jury instruction alleging the defendant failed to backup e-mails which were subsequently lost when the defendants' laptops were stolen. The plaintiff also sought monetary sanctions for alleged discovery abuses, alleging the defendants' withholding of documents caused the plaintiff's attorney to incur unnecessary travel expenses. The defendants sought a spoliation jury instruction and alleged the plaintiff failed to preserve and produce requested copies of critical e-mails. Additionally, the defendants sought monetary sanctions alleging the plaintiff failed to notify the defendants that evidence had been lost prior to flying an employee to the site to inspect it. The court determined there was an absence of bad faith and denied both requests for sanctions. The court further denied both parties' requests for monetary sanctions finding both parties produced discovery in an "incomplete or lax manner" on certain occasions.
Court Rejects "Innocent Miscommunication" Argument and Orders Sanctions
Thompson v. Assurant Employee Benefits, 2008 WL 373711 (D.Kan. Feb. 8, 2008). In this case, the defendants failed to produce initial disclosures within the deadline established by the scheduling order. The plaintiff followed up with a letter and a phone call and when both were unanswered, he filed a motion to compel and a subsequent motion seeking reimbursement of fees and expenses associated with the original motion to compel. The defendants claimed an "innocent, internal miscommunication" between the partner and associate resulted in the missed production deadline and argued against the imposition of sanctions. The court determined the plaintiff expended unnecessary resources in the effort to secure production from the defendants and was therefore entitled to reimbursement of fees and expenses in the amount of $580.
To view additional case summaries visit: http://www.krollontrack.com/case-summaries/
Practice Points: Update on State Rules Relating to the Discovery of Electronically Stored Information
Through their amendment of the Federal Rules of Civil Procedure (FRCP) on December 1, 2006, the Advisory Committee, Congress and the Supreme Court implemented uniformity among Federal courts with respect to issues of electronically stored information (ESI) discovery. It has been over a year since that enactment, but state e-discovery rules continue to be inconsistent. Some states have implemented rules that mirror the FRCP, some states are considering rule changes and some states still have yet to act.
- States that have enacted rules that mirror the FRCP: Arizona, Idaho, Indiana, Louisiana, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, Texas and Utah.
- States that are currently considering amendments: Alaska, California, Connecticut, Florida, Illinois, Iowa, Kansas, Maryland, Nebraska, New Mexico, North Dakota, Ohio, Tennessee, Virginia and Washington.
- States that have yet to act: Alabama, Arkansas, Colorado, Delaware, Georgia, Hawaii, Kentucky, Maine, Massachusetts, Michigan, Missouri, Nevada, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, West Virginia, Wisconsin and Wyoming.
This lack of uniformity among the states motivated the National Conference of Commissioners on Uniform State Laws (NCCUSL) to act. Following scholarly debate and discussion, the group issued its final approval and recommendation of uniform rules relating to the discovery of ESI in October of 2007. These uniform rules are similar to the FRCP amendments, modified only where necessary to accommodate various state procedures. The American Bar Association recently issued their approval of these uniform rules as well.
This area of the law is constantly changing at the state level. To stay up to date on recent developments, visit: http://www.krollontrack.com/rules-statutes/
News & Events
Kroll Ontrack Launches Enhanced Version of Ontrack Firstview to Optimize E-mail Analysis in Litigation and Internal Investigations
To better aid legal and technology teams, on February 5, 2008, Kroll Ontrack announced the launch of a new version of its e-mail investigation and analytics software, Ontrack® Firstview™ 2.0. Now supporting the top two largest e-mail platforms, Microsoft® Exchange™ and IBM® Lotus Notes™, Ontrack Firstview 2.0 also offers advanced search and in-depth reporting capabilities to expedite the identification of significant e-mail communications in internal investigations and litigation. Because IT is often called upon by legal teams to assist with internal investigations and litigation, Ontrack Firstview's advanced search functionality and reporting capabilities permit faster identification of critical e-mail messages allowing legal teams to demonstrate conclusions through: conceptual searching, advanced visualization and advanced reporting. For more information, please visit: http://www.ontrackfirstview.com/
Kroll Ontrack Launches Enhanced Version of Ontrack Inview to Further Streamline the E-Discovery Process
On February 5, 2008, Kroll Ontrack announced the launch of Ontrack® Inview™ 5.4., an enhanced version of its industry-leading online repository and document review tool. Providing legal document review teams with the most sophisticated and comprehensive review technology available today, Ontrack Inview 5.4 will further streamline the document review and production processes through new Document Delivery Wizard, User Group Security, and Multilingual Intelligence capabilities. For more information, please visit: http://www.ontrackinview.com/
Senate Approves Proposed Rule of Evidence 502
On February 27, 2008, the Senate approved a bill introduced on December 11, 2007, by Senator Leahy ( Vermont), Chairman of the Senate Committee on the Judiciary, adding new Evidence Rule 502 to the Federal Rules of Evidence. Among its provisions, the rule addresses waiver of the attorney-client privilege and work product protections during civil discovery for the purposes of creating uniformity among courts and responding to electronic document review and production concerns. The bill was unanimously approved with language identical to that previously approved by the Judicial Conference in September of 2007. The bill will now seek approval by the House of Representatives and the signature of the President before becoming law.
ABA Approves Uniform Rules Relating to Discovery of Electronically Stored Information
The National Conference of Commissioners on Uniform State Laws (NCCUSL) met in mid 2007 and issued its approval and recommendation for state approval of uniform rules relating to the discovery of ESI. The uniform rules are comparable to the Federal Rule amendments of December 1, 2006, and contain provisions regarding preservation, production format, time frames, sanctions, court orders, and data accessibility issues. Their purpose is to provide uniformity among the states with regard to issues surrounding the discovery of ESI. Recently, the American Bar Association announced its approval of the uniform rules.
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This newsletter is written by Joni Shogren, a Kroll Ontrack staff attorney with assistance from Gina Jytyla, also a Kroll Ontrack staff attorney. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.
For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit http://www.krollontrack.com.
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