e-Docs and Forensics in the New e-Discovery Era · e-Docs and Forensics in the “New”...
Transcript of e-Docs and Forensics in the New e-Discovery Era · e-Docs and Forensics in the “New”...
March 19, 2007
ELECTRONICALLY STORED INFORMATION
e-Docs and Forensics in the “New” e-Discovery Era
www.aplf.org
March 19, 2007
FRAMEWORK
Overview of the Rule Changes
Pre-Litigation Planning
IT Audit
Document Retention Policies
Planning Discovery
Conducting Discovery
Costs
Privilege
March 19, 2007
OVERVIEW
Changes go into effect December 1, 2006
Rules changes deal with a “new” category of information: electronically stored information (ESI)
ESI is distinct from documents or things
Focus is on “accessible” ESI
Attempt to balance need for information versus cost and time of discovery
Safe harbor provisions for inadvertent production of privilege
March 19, 2007
HAS ANYTHING REALLY CHANGED?
ESI has been the focus of much discovery in previous years
Numerous state and federal jurisdictions already have specific rules in place to address e-discovery or have begun to work on such rules
BUT, official recognition of both importance of ESI and difficulties in dealing with it
March 19, 2007
RULE 16(b) – CASE MANAGEMENT
(b) ….The scheduling order also may include…
(5) provisions for disclosure or discovery of electronically stored information;
(6) any agreements the parties reach for asserting claims of privilege or of protection as trial preparation material after production;
Form 35 also provides specific provisions for addressing ESI
March 19, 2007
RULE 26(a)(1)(B) – DISCOVERY IN GENERAL
(a) Required Disclosures; Methods to DiscoverAdditional Matter.
(1) Initial Disclosures. Except in categories of proceedings specified in Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by order, a party must, without awaiting a discovery request, provide to other parties:….
(B) a copy of, or a description by category and location of, all documents, electronically stored information, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses, unless solely for impeachment;
March 19, 2007
RULE 26(b)(2)(B) –LIMITATIONS
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:….
(2) Limitations.….
(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
March 19, 2007
RULE 26(b)(5)(B) - PRIVILEGE
(5) Claims of Privilege or Protection of Trial-Preparation Materials.….
(B) Information Produced. If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.
March 19, 2007
RULE 26(f) – CASE MANAGEMENT
(f) Conference of Parties; Planning for Discovery. …[T] he parties must…confer…to develop a proposed discovery plan that indicates the parties’ views and proposals concerning:
….(3) any issues relating to disclosure or discovery of
electronically stored information, including the form or forms in which it should be produced;
(4) any issues relating to claims of privilege or of protection as trial-preparation material, including— if the parties agree on a procedure to assert such claims after production — whether to ask the court to include their agreement in an order;….
March 19, 2007
RULE 33(d) - INTERROGATORIES
(d) Option to Produce Business Records. Where the answer to an interrogatory may be derived or ascertained from the business records, including electronically stored information, of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locateand to identify, as readily as can the party served, the recordsfrom which the answer may be ascertained.
March 19, 2007
RULE 34(a) – ESI PRODUCTION
(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
March 19, 2007
RULE 34(b) – FORM OF ESI PRODUCTION
(b) Procedure. ….The request may specify the form or forms in which electronically stored information is to be produced….The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to therequested form or forms for producing electronically stored information, stating the reasons for the objection….If objection is made to the requested form or forms for producing electronicallystored information — or if no form was specified in the request —the responding party must state the form or forms it intends to use….Unless the parties otherwise agree, or the court otherwise orders:
(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in therequest;
(ii) if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable; and
(iii) a party need not produce the same electronically stored information in more than one form.
March 19, 2007
RULE 37(f) - SANCTIONS
(f) Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.
March 19, 2007
DO THE NEW RULES CLARIFY MY OBLIGATIONS?
“Reasonably accessible”
“Undue burden or cost”
“Good cause”
“Routine operation”
“Good faith”
March 19, 2007
SHOULD IT BE CALLED A TERROR-BYTE?
Varies by type of document, but if e-mail, then roughly 40,000 boxes
March 19, 2007
WHY DISTINGUISH ESI?
Exponentially greater volume
Do you know your terabytes?
Dynamic nature of ESI
Are you improperly altering metadata?
ESI may be incomprehensible when separated from the system that created it
Native format or hard copy?
- Advisory Committee Report at 18
March 19, 2007
ADDITIONAL CONSIDERATIONS WITH ESI
Need to collect from more numerous locations
Redundancy/Duplicability
Disposal
Obsolescence
Cost
Privilege
March 19, 2007
FRAMEWORK
Overview of the Rule Changes
Pre-Litigation Planning
IT Audit
Document Retention Policies
Planning Discovery
Conducting Discovery
Costs
Privilege
March 19, 2007
PRE-LITIGATION PLANNING
In-house counsel: Conduct an IT “Autopsy” NOW
Why now instead of when litigation is imminent?
Outside counsel: Learn your clients’ systems NOW
How do I justify this to the client?
Document retention/destruction policy NOW
Create or revise
March 19, 2007
WHY SHOULD I GO TO ALL THIS TROUBLE?
SANCTIONS
Severity of misconduct
Seve
rity
of s
anct
ion
Mon
etar
y sa
nctio
ns
Excl
usio
n of
evi
denc
e
Adve
rse
inst
ruct
ion
Dism
issa
l
March 19, 2007
CONGRATULATIONS – YOU’RE NOW AN IT PROFESSIONAL
ArchivalDefragmenting
Temp cleanDo I have it?
Why?
Why?Who?What?When?How?
Where?
Automatic ProgramsLegacy DataBackups
March 19, 2007
CONGRATULATIONS – YOU’RE NOW AN IT PROFESSIONAL
Portable hard drives
USB keys
CD/DVD
Any policies governing use?
How many?
Procedures for storage on
personal hard drives?
Backups?
How many?
Procedures for storage on
personal hard drives?
Backups?
March 19, 2007
DOCUMENT RETENTION/DESTRUCTION POLICY
Destruction of documents does not equate to spoliation
Do I really have to have one?
YES!
Having one may be evidence of good faith, so long as it is entered for the right reasons and is reasonable
Can’t you just give me a form policy?
NO!
No such thing as one size fits all
Individual industries and regulations have a significant impact
March 19, 2007
DOCUMENT RETENTION/DESTRUCTION POLICY
Considerations
What should be covered?
How long?
Who is in charge?
Policing?
Suspend for litigation hold?
March 19, 2007
WHAT DO I DO ABOUT TAPE BACKUPS?
Remember, key is “routine good faith operation” of the system
Consider good faith alternatives
E.g., If you keep a copy of the backups existing at the time the litigation hold commences, can you then continue the recycling program afterwards and still assure that not relevant documents will be lost?
The only completely safe solution is to end recycling when litigation hold commences
March 19, 2007
“Must a corporation, upon recognizing the threat of litigation, preserve every shred of paper, every e-mail
or electronic document, and every backup tape? The answer is clearly ‘no.’ Such a rule would
cripple large corporations…that are almost always involved in litigation.”
-Zubulake v.UBS Warburg LLC-220 F.R.D. 212, 217 (S.D.N.Y. 2003)
WHY IS THIS QUESTION SO DIFFICULT?
The case law, committee notes and commentaries are singularly unhelpful…
“The proposed rule also recognizes that suspending or interrupting [automatic deletion] features can be prohibitively expensive and
burdensome, again in ways that have no counterpart to managing hard copy information.”
- Advisory Committee Report at 83
“It can be difficult to interrupt the routine operation of computer systems to isolate and preserve discrete parts of the information they
overwrite, delete, or update on an ongoing basis, without creating problems for the larger system”
- Advisory Committee Report at 83
It is unrealistic to expect parties to stop such routine operation of their computer systems as soon as they anticipate litigation. It is also undesirable; the result would be even greater accumulation of duplicative and
irrelevant data that must be reviewed, making discovery more expensive and time consuming
- Advisory Committee Report at 83
There is CONSIDERABLE UNCERTAINTY as to whether a party – particularly a party that produces large amounts of information – NONETHELESS HAS TO INTERRUPT THE
OPERATION OF THE ELECTRONIC INFORMATION SYSTEMS it is using to avoid any loss of information because of the possibility that it might be sought in discovery, OR RISK
SEVERE SANCTIONS
- Advisory Committee Report at 83
March 19, 2007
FRAMEWORK
Overview of the Rule Changes
Pre-Litigation Planning
IT Audit
Document Retention Policies
Planning Discovery
Conducting Discovery
Costs
Privilege
March 19, 2007
Must balance need for information against need to minimize disruption of “routine operations critical to ongoing activities.”
- Advisory Committee Report at 34
Seek agreement regarding:Form of Production of Documents
Native format?Duty of preservation
Accessible and inaccessible informationSearch TermsPrivilege IssuesCost sharing
RULE 26(F) CONFERENCE
March 19, 2007
THE RULE 16 CONFERENCE
A complete and thorough Rule 26(f) conference is key
The easier you make it for the court, the more likely the court is to adopt your plan
Consider previewing the likely points of dispute
Definitely address limitations, especially with respect to inaccessible data
March 19, 2007
FRAMEWORK
Overview of the Rule Changes
Pre-Litigation Planning
IT Audit
Document Retention Policies
Planning Discovery
Conducting Discovery
Costs
Privilege
March 19, 2007
Preservation of Information
Requesting & Responding to Discovery
Form of Production
Cost Shifting
Privilege Issues
Sanctions/Safe Harbor
CONDUCTING DISCOVERY UNDER REVISED RULES
March 19, 2007
DUTY TO PRESERVE
Duty to preserve documents arises as soon as party knows or should know about litigation, or if litigation is reasonably anticipated in the future.
Duty varies district-by-district
March 19, 2007
HOW DO I COMPLY WITH MY DUTY TO PRESERVE?
Counsel should issue Litigation Hold to employees as soon as litigation begins--ASAP
Only those with litigation holds will likely be able to seek protection from sanctions under Rule 37(f)’s new safe harbor provisions…more later
Periodically reissue Litigation Hold to all employees so that new employees are also aware of it
March 19, 2007
ASSESS THE SCOPE OF THE DUTY
Make direct contact with “key players”
Interview
Importance of preservation
Consider imaging hard drives
Contact IT personnel
Importance of preservation
IT infrastructure
Accessibility of Information
Can it be found elsewhere?
May need to preserve inaccessible, potentially relevant information
Organize team of point persons in each department
March 19, 2007
COMMUNICATION IS KEY
Contact opposing counsel immediately
Scope of preservation
Form of production
Preservation letter?
Seek guidance from Court
March 19, 2007
INITIAL DISCLOSURES
Rule 26(a)(1)(B) substitutes “Electronically Stored Information” (“ESI”) for data compilations
Must disclose description by category and location of documents & ESI relevant to claim or defense
Should search available electronic systems for relevant information
Disclose existence of documents in paper & electronic form
Consider disclosing IT personnel or 30(b)(6) witness
March 19, 2007
DRAFTING/RESPONDING TO DISCOVERY REQUESTS
New Rule 26(b)(2)(B): Limitations.
“A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
Responding party bears burden of showing ESI is not reasonably accessible because of undue burden or cost
Information may still be ordered produced if Requesting Party shows good cause
- Committee Notes to Proposed Amendments at 14
March 19, 2007
DRAFTING/RESPONDING TO DISCOVERY REQUESTS
New Rule 26(b)(2)(B): Limitations.
Court may set conditions (cost-shifting)
Committee Notes: “The responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing.”
Detailed enough so that others can evaluate burdens, costs, likelihood of relevance
May still need to preserve inaccessible ESI
- Committee Notes to Proposed Amendments at 14
March 19, 2007
ACCESSIBILITY OF DATA
Examples of data identified in the Committee Report as “present[ing] particular problems” in terms of accessibility:
Back up tapes intended for disaster recovery purposes that are often not indexed, organized or susceptible to electronic searchingLegacy data remaining from obsolete systems, which is unintelligible to current systems“Deleted” data (including fragmentary data) that requires forensics for recoveryDatabases designed to create information in certain ways that cannot readily create that information in other ways
- Advisory Committee Report at 42
March 19, 2007
ACCESSIBILITY OF INFORMATION
More accessible Less accessible
Activ
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nline
dat
a (h
ard
drive
s)
Near
-Line
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a (c
ompu
ter a
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sible
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Offlin
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org
anize
d ba
ck u
p
tape
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Offlin
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isast
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reco
very
tape
s)Er
ased
or f
ragm
ente
d da
ta (n
ot in
tend
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to b
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ved,
cap
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of re
stor
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Lega
cy d
ata/
back
up
tape
s fo
r sys
tem
s
no lo
nger
sup
porte
d
March 19, 2007
REVISED RULES FOR DISCOVERY REQUESTS
Rule 34—Document Requests
Adds Electronically Stored Information (“ESI”) as category of information may be produced
Rule 33(d)—Interrogatories Relying on Business Records
Adds ESI (replaced data compilation)
ESI is proper type of information to rely upon in interrogatory answers
May have to provide additional information to make equally accessible to requesting party
Rule 45 (Subpoenas) revised to include ESI as appropriate information to seek
March 19, 2007
FORM OF PRODUCTION
Entitled to specify form of production (paper vs. pdf, etc.)
If not specified, responding party may produce in any form that is “reasonably usable” OR “in that which ESI is ordinarily maintained”; Rule 34(b)(ii)
If form specified, responding party must state whether they object to that form & what form they intend to produce
Also must disclose if other forms available, even if requester only asks for one form. In re Bristol-Myers Squibb Sec. Litig., 2005 F.R.D. 437 (D. N.J. 2002); Storch v. IPCO Safety Products, Inc., 1997 U.S. Dist. LEXIS 10118 (E.D. Pa. Jul. 16, 1997).
Only need produce one form for documents
Rule 34(b)(iii)
March 19, 2007
DOCUMENT REQUEST DRAFTING/RESPONDING
Broad requests in = Broad production out
Consider narrowing to specific person’s files and date ranges
More productive, more likely to stand up
If object to searching or producing ESI because unduly burdensome, must disclose what is not being searched and where it is
Communicate with counsel
Metadata?
“Quick Peek”/Clawback
March 19, 2007
HOW DO I RESOLVE DISPUTES ABOUT THE SCOPE OF MY SEARCH?
Requesting party should evaluate information from accessible sources before asking responding party to search and produce information from not reasonably accessible sources.
If they still want you to search, parties should confer regarding burdens and costs of accessing/retrieving information, needs to support good cause showing, and limitations that should be imposed.
If still in dispute
Motion to Compel
Motion for Protective Order
- Committee Notes to Proposed Amendments at 14-15.
March 19, 2007
HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH?
Court balances burden and costs against particular circumstances in case. Committee notes cite these considerations:
1. Specificity of discovery request
2. Quantity of information available from other and more easily accessed sources
3. Failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources
4. Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources
5. Predictions as to the importance and usefulness of information
6. Importance of issues at stake in litigation
7. Parties’ resources
- Committee Notes to Proposed Amendments at 17
March 19, 2007
If dispute regarding accessibility, Court may order sampling of offline data to determine relevance
Zubulake I, 217 F.R.D. 309, 324 (S.D.N.Y. 2003)(ordered defendant to search and produce five backup tapes out of ninety-four backup tapes to determine whether relevant information existed on the backup tapes that was not present elsewhere)
Delta Financial Corp. v. Morrison, 2006 N.Y. Misc. LEXIS 2232 (S. Ct. N.Y. August 17, 2006) (ordered plaintiff to do sample searches to determine whether relevant information existed on backup tapes; cost-shifted entire test run, including review, to defendant)
HOW WILL COURTS RESOLVE DISPUTES REGARDING SCOPE OF SEARCH?
March 19, 2007
COST SHIFTING
26(b)(2)(B)—“A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.”
If court finds something not reasonably accessible—may still get it if prove good cause, but may have to share in costs.
Cost of compliance may or may not include attorney review time
Committee Notes to Proposed Amendments at 17: Suggests that cost of restoration can be cost shifted, unclear on attorney review time (although does note that the producing party’s burden in reviewing information for relevance and privilege may be weighed by the Court when determining good cause)
Zubulake: Court excluded attorney time
Responding party pays for response
Limited by 26(c): Unduly burdensome, labor intensive, significant financial burden.
New RulesTraditional approach
March 19, 2007
COST SHIFTING
Zubulake factors — Hierarchy of importance:
1. Extent to which request specifically tailored to discover relevant information
2. Availability of such information from other sources
3. Total cost of production, compared to the amount in controversy
4. Total cost of production, compared to the resources available toeach party
5. Relative ability of each party to control costs and incentives to do so
6. Importance of the issues at stake in the litigation
7. Relative benefits to the parties of obtaining the information
- Zubulake v. UBS, 217 F.R.D. 309, 322 (S.D.N.Y. 2003)
March 19, 2007
COST SHIFTING
Zubulake factors followed by:
ND Illinois (Wigington, additional factor “importance of the requested discovery in resolving the issues in the litigation”)
ED Wisconsin (Hagemeyer)
ND California (OpenTV)
Zubulake not followed in these jurisdictions:
ND Texas
Supreme Court of NY, Nassau County
March 19, 2007
ACCESS TO DOCUMENTS
Rule 34(a) includes inspection, copying, testing
Could permit court to allow direct access to ESI
In practice, access only permitted if bad faith (noncompliance with discovery)
Rule 33(d)
Direct access “only if that is necessary to afford requesting party an adequate opportunity to derive or ascertain an answer to the interrogatory”; Committee Notes to Proposed Amendments at 28.
March 19, 2007
PRIVILEGE ISSUES
New Rules 26(b)(5) & 45(d)(2)(B) establish procedure only for addressing inadvertent disclosure of privileged materials
Does not change substantive privilege law (i.e. whether production results in waiver)
March 19, 2007
PRIVILEGE ISSUES
New Procedure (Rule 26(b)(5)) for retrieving inadvertently-produced material protected by privilege or work product
Privilege holder notifies receiving party immediately upon becoming aware of disclosure
After being notified, receiving party must return, sequester, or destroy
Receiving party cannot use or disclose information (if already used or disclosed, must take reasonable steps to retrieve)
Receiving party may promptly present information to court under seal for determination of claim
Whether material privileged still substantive law issue
March 19, 2007
PRIVILEGE ISSUES
Proposed FRE 502—Formalize “subject matter” waiver of AC/WP privilege for voluntary disclosure, exception: “inadvertent” disclosure
502(a): Subject Matter Waiver—Requires production of similar information
502(b): Exception: Inadvertent disclosure—if holder of privilege/WP took reasonable precautions to prevent disclosure, AND took reasonably prompt measures to rectify the error (pursuant to F.R.C.P. 25(b)(5)(B).
Comment period ending Feb. 2007.
March 19, 2007
SANCTIONS—RULE 37
Situations that may warrant sanctions:
1. willful destruction of evidence
2. failure to preserve information on backup tapes
3. unreasonably or inconsistently enforced document retention policy
4. negligence in production
5. purposeful sluggishness in production
6. incomplete & inaccurate Rule 26 disclosures
March 19, 2007
SANCTIONS—RULE 37
Modified to add safe harbor provision—37(f): “Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of routine, good-faith operation of an electronic information system.”
Good faith requires litigation hold. If no hold, probably no safe harbor for inadvertent deletion.
Intervention with deletion may be required; consider availability elsewhere, potential relevance
Committee Notes: ordinary computer use results in routine alteration & deletion of information for reasons unrelated to litigation
March 19, 2007
WHAT DOES IT ALL MEAN?
Learn what systems and types of information you will be dealing with as soon as possible
Put guidelines in place now to streamline production issues in the future – a little extra work on the front end may significantly reduce costs later
Be prepared to address all e-discovery issues very early in the litigation process; have plans for your preferred methods of dealing with production issues
Until further case law develops, err on the side of retention
Always remember that demonstrable good faith is extremely important
March 19, 2007
SELECTED RESOURCES
Amendments to the Federal Rules of Civil Procedure, available at www.uscourts.gov/rules/EDiscovery_w_Notes.pdf
Report of the Advisory Committee on the Federal Rules of Civil Procedure to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (May 2005), available at www.uscousts.gov/rules/reports.htm
www.applieddiscovery.com
www.thesedonaconference.org
March 19, 2007
S. Richard Carden ([email protected])
Jennifer M. Kurcz ([email protected])
MBHB300 South Wacker DriveChicago, Illinois 60606-6709312 913 0001 phone312 913 0002 faxwww.mbhb.com
www.aplf.org
February 8, 2007
INTERESTING NEW CASES
• In re NTL, Inc. Securities Litigation, 2007 WL 241344 (S.D.N.Y. 2007) (granting adverse instruction, costs and fees for failure to properly implement litigation hold)
• Hutchens v. Hutchens-Collins, 2007 WL 319990 (D.Or. 2007) (cost shifting does not apply to accessible ESI)
• Miller v. Holzman, 2007 U.S. Dist. LEXIS 2987 (D.D.C. 2007) (applying Sedona Conference principles in addressing litigation hold)
• In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, 2007 U.S. Dist. LEXIS 2650 (E.D.N.Y. 2007) (requiring production of metadata for future productions in existing case)
• Quinby v. WestLB AG, 2007 U.S. Dist. LEXIS 2955 (S.D.N.Y. 2007) (addressing cost shifting in restoration of backup tapes)
February 8, 2007
INTERESTING NEW CASES
• Ameriwood Indus., Inc. v. Liberman, 2006 U.S. Dist LEXIS 93380 (E.D. Mo. 2006) (conducting good cause analysis in granting request for imaging of hard drives)
• Zurich American Insurance Co. v. ACE American Reinsurance Co., 2006 U.S. Dist. LEXIS 92958 (S.D.N.Y. 2006) (granting sampling of “opaque” data storage system intentionally used by “sophisticated” company)
• Kentucky Speedway, LLC, v. Nat’l Ass’n of Stock Car Auto Racing, 2006 U.S. Dist. LEXIS 92028 (E.D. Ky. 2006) (citing Sedona Conference and commentator in endorsing a presumption against the production of metadata)
• Williams v. Sprint/United Management Co., 2006 WL 3691604 (D. Kan. 2006) (denying production of e-mails in native format where parties had previously agreed to production in other format)
• Flexsys Americas LP v. Kumho Tire U.S.A., 2006 U.S. Dist. LEXIS 88303 (N.D. Ohio 2006) (creating e-discovery plan for parties when they had not reached agreement on one)