Tuesday, November 27, 2007

One year later: Kroll Ontrack reveals the most significant electronic discovery cases under the new federal rules of civil procedure

Minneapolis – Nov. 28, 2007 – As the one year anniversary of the amended Federal Rules of Civil Procedure (FRCP) approaches, Kroll Ontrack®, the industry’s largest provider of electronic discovery and computer forensics services, today announced a breakdown of the reported electronic discovery opinions from 2007 as well as a list of the year’s top five most significant discovery cases. Focusing primarily on interpreting the new FRCP, common topics reoccurring in judicial opinions issued in 2007 included: the importance of early case conferences, the accessibility of electronically stored information, and what to do when parties fail to play by the new rules.

Thus far, approximately 105 e-discovery opinions were reported since December 1, 2006. The major issues involved in these cases break down as follows:

  • 25% of cases addressed discovery requests and motions to compel
  • 24% of cases addressed spoliation/sanction
  • 23% of cases addressed issues involving the form of production
  • 9% of cases addressed preservation/litigation holds
  • 7% of cases addressed attorney-client privilege and waiver
  • 6% of cases addressed production fees
  • 6% of cases addressed admissibility of electronic evidence

“The new FRCP made electronic discovery a reality for members of both the bench and bar in 2007,” said Michele Lange, director of Legal Technologies for Kroll Ontrack. “While the effects of the discovery-related changes to the FRCP are still being sorted, it is likely that 2008 case law will continue to drill down on the language of the new FRCP, and expand further into more advanced issues, such as metadata preservation and production and preferred production format.”

Arguably, the top five most significant cases from 2007 that encapsulate these issues included:

Court Orders Defendant to Preserve and Produce Server Log Data Stored in RAM
Columbia Pictures Industries v. Justin Bunnell , No. 06-1093 FMC (JCx) (C.D.Cal. May 29, 2007), aff’d. 2007 WL 2702062 (C.D.Cal. Aug. 24, 2007).
In a suit alleging copyright infringement, the plaintiff sought preservation and production of user IP addresses along with dates and times of user requests. The defendant argued that this data was temporarily stored in random access memory (RAM) and did not constitute electronically stored information (ESI.) The court held RAM data constituted ESI and was discoverable.

Magistrate Finds E-mail Exhibits Inadmissible and Outlines Standards for Electronic Evidence Admissibility
Lorraine v. Markel Am. Ins. Co. , 2007 WL 1300739 (D. Md. May 4, 2007).
Plaintiffs brought suit to enforce an arbitrator’s award. The judge dismissed both parties’ dispositive motions without prejudice to allow resubmission with evidentiary support. The court held there is a five-point test in determining the admissibility of electronic evidence. ESI must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the “best evidence”, and 5) not unduly prejudicial. The court stated, “it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try.”

Court Orders E-Mail Search and Production at Producing Party’s Own Cost
Peskoff v. Faber, 2007 WL 530096, (D.D.C. Feb. 28, 2007).
In a suit alleging fraud, breach of fiduciary duty, breach of contract, and conversion inter alia, the plaintiff argued that a previous electronic document production contained unexplained time gaps, suggesting problems with the original production. As a result, the plaintiff moved to compel discovery of additional e-mail. The court found in favor of the plaintiff, holding that accessible data must be produced at the cost of the producing party, unless the producing party can prove the documents are inaccessible.

Court Considers Sanctioning Attorneys for Discovery Abuses
Qualcomm, Inc. v. Broadcom Corp., 2007 WL 2900537 (S.D.Cal Sept. 28, 2007).
During one of the last days of a patent infringement 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 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.

Court Denies Motion to Compel Deleted E-mail Stored on Backup Tapes
Oxford House, Inc. v. City of Topeka , 2007 WL 1246200 (D. Kan. Apr. 27, 2007).
The plaintiff brought suit alleging that the defendant improperly denied several conditional housing permits. In responding to the plaintiff’s motion to compel, the court determined there was no obligation to preserve overwritten e-mails before the likelihood of litigation. Moreover, the court used a cost-benefit balancing test to find that the production of the requested ESI would be unduly burdensome given the cost and likelihood of retrieval.

The Legal Technologies & Consulting division of Kroll Ontrack provides corporations, law firms and government agencies with technology and consulting services for large scale paper and electronic discovery, computer forensics, and litigation readiness and response projects. Through the acquisition of TrialGraphix (September 2007), the leader in jury consulting and presentations, Kroll Ontrack now offers a wide range of trial services such as jury research; witness preparation; trial consulting; and graphics and presentations for mediations, arbitrations, and trial. Helping clients quickly and cost-effectively find, review, manage, produce and present relevant evidence, Kroll Ontrack is recognized as the leading electronic discovery provider by the AmLaw Tech Survey (2002, 2003, 2004, 2005, 2006 & 2007).

About Kroll Ontrack Inc.

Kroll Ontrack provides technology-driven services and software to help consumers as well as legal, corporate and government entities recover, search, analyze, produce and present data efficiently and cost-effectively. In addition to its award-winning suite of software, Kroll Ontrack provides data recovery, advanced search, paper and electronic discovery, computer forensics, ESI consulting, and trial consulting and presentation services. Kroll Ontrack is a technology services division of Kroll Inc., the global risk consulting company. For more information about Kroll Ontrack and its offerings please visit: www.krollontrack.com; www.ontrackdatarecovery.com; www.engeniumsearch.com; www.trialgraphix.com.