Archive for December, 2010:
|There are a large and growing number of cases and decisions that are relevant to consider in the context of e-discovery which highlight some of the common e-discovery mistakes to avoid, including the following:|
You can win a lawsuit and still lose on e-discovery issues.
Keithley v. Homestore, Inc. – Kevin Keithley v. The Home Store.com, Inc., 2008 U.S. Dist. LEXIS 61741 (August 12, 2008)
Keithley won on summary judgment, but still had to pay $283,000 in fees for failing to preserve produce required electronic evidence.
Using a work computer can eliminate privilege.
Alamar Ranch v. City of Boise – Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009)
This case held that emails sent by a non-party to a lawyer are not protected by attorney-client privilege if a company policy exists that emails sent using company facilities are subject to monitoring.
If you withhold emails, the sanctions can be significant.
Qualcomm, Inc. v. Broadcom Corporation – No. 05-CV-1958-B(BLM), 2007 WL 2296441 (S.D. Cal. August 6, 2007)
Although Qualcomm initially prevailed in this case, it was discovered after the ruling that thousands of emails were withheld during the case; the Court awarded $8.5 million in attorney’s fees and costs against Qualcomm.
If all you have is backup tapes, you might still be required to produce data.
Disability Rights Council of Greater Washington v. Washington Metropolitan Area Transit Authority 2007 – U.S. Dist. LEXIS 39605
Production of email from backup tapes was ordered by the Court at the expense of the producing party. The Court also noted that the Safe Harbor provisions of Rule 37(e) do not apply if data destruction is not suspended after a litigation hold.
Omnicare, Inc. v. Mariner Health Care Mgmt. Co. 2009 – WL 1515609
The court ruled in this case that just because “ESI is now contained on backup tapes instead of in active stores does not necessarily render it not reasonably accessible.”
You might need to produce metadata in addition to electronic documents.
Ryan v. Gifford Civ. No. 2213-CC, 2007 – WL 4259557 (Del. Ch., Nov. 30, 2007)
The Court ordered “the production of documents identified in plaintiffs’…motion to compel in a format that will permit review of metadata, as plaintiffs have clearly shown a particularized need for the native format of electronic documents with original metadata.”
Your employees’ home computers might be subject to e-discovery
Orrell v. Motorcarparts of America, Inc. 2007 – WL 4287750 (W.D.N.C. Dec. 5, 2007)
The court ordered the production of a plaintiff’s home computer for forensic examination.
You might have to produce data, no matter how difficult it is or how much it costs
Auto Club Family Insurance Co. v. Ahner 2007 – WL 2480322 (E.D. La. August 29, 2007)
“Like other courts that have addressed this issue, this court will not automatically assume that an undue burden or expense may arise simply because electronic evidence is involved.” FRCP Rules 34 and 45 “were amended…to provide for routine discovery of electronically stored information from parties and non-parties. In fact, whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production). But in the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.” [Emphasis added]
Don’t intentionally delete data that might be discoverable.
Ameriwood Ind., Inc. v. Lieberman 2007 – WL 5110313 (E.D. Mo. July 3, 2007)
The defendants in this case deleted electronic content and used disk scrubbing software on a number of hard drives a short time before they were to be provided to a forensic expert in a case involving misappropriation of trade secrets. The court entered a judgment for the plaintiff and ordered the defendant to pay the plaintiff’s attorney fees and other costs.
Micron Technology, Inc. v. Rambus, Inc. C.A. No. 00-792-SLR (January 9, 2009)
Rambus’ “aggressive” document deletion policy destroyed documents that the court ruled it had a duty to preserve, resulting in the court’s sanction that certain patents were not enforceable against Micron.