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In This Issue:
 Recent ESI Court Decisions
Court Orders Party to Reproduce Documents at Its Own Cost Where Initial Production Neglected to Link E-mails with Corresponding Attachments
PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007). In this breach of contract case, the defendant sought production of all electronically stored e-mails along with their corresponding attachments. The plaintiff produced a disc with e-mails that, due to a technical glitch, were divorced from their proper attachments. Many efforts to join the attachments failed and the defendant moved to order a second production at the plaintiff's expense. The plaintiff claimed such would be overly burdensome and costly but agreed to reproduce at the defendant's expense. Relying on Fed. R. Civ. P. 34(b), the court found that the original production was not within the normal course of business or in a form readily usable and therefore ordered the plaintiff to reproduce. The court also ordered the plaintiff to pay for the costs of reproduction as the producing party presumptively bears the expense of production.
Defendant Sanctioned for Destruction of Relevant ESI
APC Filtration, Inc. v. Becker, 2007 U.S. Dist. LEXIS 76221 (N.D.Ill. Oct. 12, 2007). The plaintiff in this case brought suit against a former employee for trade secret misappropriation and breach of contract. Days after receiving the complaint, the defendant discarded his computer, resulting in the plaintiff moving for default judgment, sanctions and attorney's fees. Relying on its inherent power and Fed. R. Civ. P. 37, the court refused to enter default judgment but affirmed the plaintiff's motion for sanctions, finding the defendant acted in bad faith. The court also ordered the defendant to pay reasonable attorneys fees and costs associated with the plaintiff's motion, third party discovery required due to the computer destruction, and retention of the computer expert.
Court Allows Ordinary Course of Business Document Production Where Requesting Party Fails to Specify Other Format
MGPIngredients, Inc. v. Mars, Inc. , 2007 WL 3010343 (D.Kan. Oct. 15, 2007). In this suit alleging patent infringement and misappropriation of trade secrets inter alia, the plaintiff moved the court to compel the defendant to identify particular documents responsive to each request for production, rather than merely producing documents in the format in which they are kept in the usual course of business. The court denied the motion, relying on Fed. R. Civ. P. 34(b) which requires a responsive party to produce documents either in the manner in which they are kept in the usual course of business or to organize and label the documents to correspond to each request. As the parties failed to agree in advance to an alternative manner or production per Rule 34(b), the court refused to order a different form of production.
Court Orders Defendant to Hire Outside Vendor to Perform Keyword Search
Wingnut Films, Ltd. v. Katja Motion Pictures Corp., 2007 WL 2758571 (C.D.Cal. Sept. 18, 2007). In this contract dispute, discovery was a long, drawn out battle where the defendant repeatedly failed to comply with court ordered discovery. For over a year, the defendant responded to orders compelling production by repeatedly certifying they had fully complied without producing any correspondence, memoranda, e-mail, notes, work papers or litigation settlement documents. Relying on Tulip Computers Int'l B.V. v. Dell Computer Corp., 2002 WL 818061 (D.Del. Apr.30 2002), the court ordered the defendant to retain an outside vendor to access servers and hard drives of specified employees and conduct keyword searches for responsive documents and e-mails. The court also imposed monetary sanctions under Fed. R. Civ. P. 37(b)(2) and 26(g)(3) in the amount of $125,000.
Court Considers Sanctioning Attorneys for Discovery Abuses
Qualcomm, Inc. v. Broadcom Corp ., 2007 WL 2900537 (S.D.Cal Sept. 28, 2007). In this patent infringement suit, the court issued numerous orders beginning with non-infringement of the patents at issue to most recently ordering the plaintiff's attorneys to show cause why they should not be personally sanctioned for discovery abuses. During one of the last days of trial, cross-examination of the plaintiff's witness revealed the existence of relevant e-mails that the court later held were "the tip of the iceberg" in an attempt to conceal over 200,000 pages of relevant e-mails. The court found by clear and convincing evidence that Qualcomm's counsel engaged in misconduct by providing calculatedly misleading and false discovery responses, asserting patently false statements of fact during motion hearings, minimizing the significance of missing e-mail at trial, continuing through post-trial activity. The judge characterized the discovery abuses as, "an organized program of litigation misconduct" and ordered the plaintiff's attorneys to demonstrate why they should not be sanctioned, without use of documents protected by the attorney-client privilege. See alsoQualcomm, Inc. v. Broadcom Corp., 2007 WL 2261799 (S.D.Cal. Aug. 6, 2007); Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2296441 (S.D.Cal. Aug. 6, 2007); Qualcomm, Inc. v. Broadcom Corp., 2007 WL 1031373 (S.D.Cal. March 21, 2007).
Court Refuses to Impose Spoliation Sanctions Absent a Showing of Bad Faith
Escobar v. City of Houston , 2007 WL 2900581 (S.D.Tex. Sept. 29, 2007). In this wrongful death proceeding, the plaintiff sought an adverse inference sanction for the defendant's alleged destruction of electronic communications following notice of the claim. The defendant argued that the officer involved in the shooting death of the 14 year-old plaintiff did not have an e-mail address and therefore the likelihood of finding any relevant information was nonexistent. The defendant also claimed the 90 day automatic e-mail deletion policy would have deleted anything relevant prior to the two years it took the plaintiff to seek electronic communications. Citing Fed. R. Civ. P. 37(f), the court denied the motion, finding no evidence that relevant e-mails were destroyed in bad faith in the routine operation of the police department's computer system.
Other New Case Summaries Added to the Kroll Ontrack Case List This Month:
- Court Denies Overly Broad and Burdensome ESI Request for Public Records — State ex rel. Gehl v. Connors, 2007 WL 3024436 (Wis.Ct.App. Oct. 18, 2007).
- Court Orders Defendant to Produce Names of Document Retention Notice Recipients — In re eBay Seller Antitrust Litigation, 2007 WL 2852364 (N.D.Cal. Oct. 2, 2007).
To view additional case summaries visit: http://www.krollontrack.com/case-summaries/
Practice Points: The Litigation Continuum — Cutting-edge Technology and Best Practices at Every Step
From preserving, reviewing and producing ESI to filing an electronic brief with the court or giving a multi-media presentation to a jury, litigation today is more technically complex than ever before. At every step of the litigation continuum — pre-litigation preparedness, complaint filed or investigation commenced, case management, discovery, trial and post-trial — a modern practitioner must leverage advanced litigation tools to gain the strategic edge for your client.
Litigation Preparedness
The litigation lifecycle begins before a case is filed or a claim arises. The focus for this first stage of the continuum is preparedness. Because no organization is ever immune to litigation, a company and its counsel must work to prepare for an investigation or litigation that may occur at any time. An organization that makes little or no effort to plan for the future is likely to find itself in trouble once a matter arises, with insufficient time and resources to adequately defend or assert its rights. During the litigation preparedness phase, it is important to establish defensible document retention policies, formulate litigation hold strategies, inventory what data you have, where it is stored and how it is indexed and create a policy for preservation, review and production of information. Each of these steps will help prepare your company for litigation and perhaps prevent future spoliation claims for failing to comply with discovery obligations.
Complaint Filed/Investigation Commenced
The next phase of litigation occurs once the complaint is filed or the investigation is commenced. During this phase, it is most important to preserve all relevant electronically stored information. The procedures for implementing a preservation plan can vary drastically based on the type of claim and type of company, so consider consulting with an expert to implement the best data collection plan. Additionally, the use of an e-mail analysis software tool will help counsel get a handle on who was involved in the matter, what they were saying and when e-mail evidence was being exchanged. A computer forensic expert will also be able to image any key employees' hard drives and begin a forensic investigation to look for digital clues. Lastly, it is not too early to enlist the help of a trial services expert to begin venue profile or case and exposure analysis.
Case Management
As soon as a case commences, the litigation team should seek agreement on what tools will be utilized to manage case work product. New case extranet and intranet portals that centralize contact information, tasks, schedules, pleadings, court orders, research and memos can greatly improve collaboration across a case team.
Discovery
Gone are the days of attorneys searching through file cabinets full of pieces of paper and photo copying the ones relevant to the pending litigation. Discovery in the twenty first century includes not only paper documents but also e-mails, word processing documents, spreadsheets, database files and even voicemail files and other sound recordings. A robust review tool that can handle all three types of information — paper, electronic, and audio — will be the most accurate and efficient method for conducting document review and preparing for document production to the opposing party.
Trial
Should your case progress to trial, it is important that you provide your client with every advantage to obtain a favorable outcome in court. If the case is to be tried before a jury, it is important to devote adequate time and resources to jury selection. Jury composition can many times determine the outcome of the case. It is also recommended that the trial team be diligent in their preparation of trial materials. There will likely be massive amounts of evidence to present and the party that ultimately wins the case may not be the party with the most information, rather, the party with the most effective and persuasive presentation of that information. Consider using cutting-edge presentation technology, complete with multi-media displays. Finally, make sure you have experienced, credible and prepared expert witnesses on your side.
Post-Trial
Regardless of the trial outcome, post-trial protocol is crucial to future matters. If the trial was decided by a jury, those jurors should be interviewed. Further, the trial team should evaluate which techniques worked well and which were less persuasive. Last, determine if any issues were related to being unprepared with respect to your ability to manage electronically stored information involved in the case and take corrective action for handling future electronic evidence.
News & Events
Kroll Ontrack Partners with Street Law to Teach High School Students about Law and Technology
Kroll Ontrack is partnering with Street Law Inc., a non-profit organization that partners corporations with nearby diverse, high school law classes in an effort to teach the students more about the law and to encourage them to consider careers in the legal profession. With over thirty Kroll Ontrack volunteers, the program will involve students from a St. Paul, Minnesota area high school and will focus on the role of technology in law. The all-day conference will take place in November 2007 at Kroll Ontrack's company headquarters in Eden Prairie, Minnesota. More information on Street Law can be accessed at: http://www.streetlaw.org/
Judicial Conference Approves Proposed New Federal Rule of Evidence 502
On September 26, 2007, the U.S. Judicial Conference issued its approval and recommendation to Congress for the addition of Federal Rule of Evidence 502. 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. In previous months, the Advisory Committee on Evidence Rules issued a recommendation that the Standing Committee approve the proposal and submit it to the Judicial Conference. The Standing Committee conveyed the proposed new rule to the Judicial Conference that now will transmit the proposal to Congress for enactment. The Conference's letters to both the Senate and House can be accessed at: http://www.uscourts.gov/rules/Hill_Letter_re_EV_502.pdf
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This newsletter is written by Michele C.S. Lange,
Kroll Ontrack Legal Technologies Director, with assistance from Joni Shogren, a Kroll Ontrack staff attorney. Ms. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics, and technology's role in the law. She can be contacted by writing to mlange@krollontrack.com.
For more information about electronic discovery and computer forensics services, please call 800 347 6105 or visit http://www.krollontrack.com.
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