Missouri Bar. Volume 64 No. 1 January-February The Supreme Court of Missouri. Journal of The Missouri Bar January-February 2008 Page 1

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1 JOURNAL OF THE Missouri Bar Volume 64 No. 1 January-February 2008 The Supreme Court of Missouri Journal of The Missouri Bar January-February 2008 Page 1

2 v. ALR: Now available only on Westlaw. Now there s only one screen showing ALR : Westlaw. No matter how new, narrow or unfamiliar your legal topic is, ALR gives you a solid understanding of it in a matter of a few clicks. Written by attorneyexperts, each ALR article impartially examines a single point of law in great depth, then lists every case in every jurisdiction that discusses it. For more information, call (WEST) and enter code *ALR exclusively on Westlaw starting 1/1/ West, a Thomson business L /12-07 Better results faster. Journal of The Missouri Bar January-February 2008 Page 2

3 j o u r n a l o f t h e Missouri Bar Volume 64 No. 1 Pages 1-56 January-February Discovery of Electronically Stored Information by Clayton L. Barker & Philip W. Goodin Evidence of Prior Accidents/Incidents in Premises Defect Cases by James D. Walker, Jr. Address of U.S. Supreme Court Associate Justice Hugo L. Black to The Missouri Bar Annual Banquet d e p a r t m e n t s 5 The Flag 10 President's Page 30 Taxes in Your Practice r e p o r t s / b u l l e t i n s 29 Disciplinary Actions 32 The Bar Speaks 32 In Memoriam 34 Supreme Court Rule Changes 48 Notices of Corporate Dissolution 54 The Lawyers' Mart ON THE COVER: The Supreme Court of Missouri building, completed in 1907, is now in its second century of service to the Court and the people of Missouri. It is located across the street from the state Capitol in Jefferson City. The Journal of The Missouri Bar (ISSN ) is published bimonthly January-February, March-April, May-June, July- August, September-October, November-December by The Missouri Bar, 326 Monroe Street, Jefferson City, Missouri (telephone 573/ , FAX 573/ ). Editor, Gary P. Toohey. Subscription price is $24.00 per year ($6.00 for members, paid as a part of enrollment fee). Single copies $6.00. Office of publication, 326 Monroe Street, Jefferson City, Missouri 65101, second class postage paid at Jefferson City, Missouri. POSTMASTER: Send address changes to: Jo u r n a l o f Th e Mi s s o u r i Ba r, P.O. Box 119, Jefferson City, Missouri Opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of The Missouri Bar or the Jo u r n a l; publication of advertising material is not an endorsement by The Missouri Bar or the Jo u r n a l of the advertised product or service. Journal of The Missouri Bar January-February 2008 Page 3

4 JOURNAL OF THE Missouri Bar Publisher: Editor: The Missouri Bar Keith A. Birkes Executive Director Gary P. Toohey EDITORIAL BOARD Douglas E. Abrams, Chair John T. Coghlan, Vice Chair Melody R. Daily, Vice Chair Susan B. Green Hon. Vernon Scoville Hon. Richard B. Teitelman Gregory E. Upchurch Teresa A. Woody William R. Bay, Board of Governors Liaison OFFICERS AND BOARD OF GOVERNORS Charlie J. Harris, Jr., President Thomas M. Burke, President-Elect H.A. "Skip" Walther, Vice-President Thomas F. Simon, Treasurer Keith A. Birkes, Secretary and Executive Director Dist. 1 Suzanne B. Bradley, Allan Seidel Dist. 2 Mike Greenwell Dist. 3 Max Mitchell Dist. 4 Brian Francka, Mark W. Comley Dist. 5 Edward Hershewe, William Lasley Dist. 6 Erik Bergmanis Dist. 7 Matthew M. Mocherman, W. Edward Reeves Dist. 8 Vincent F. Igoe, Jr., Douglass F. Noland, Patrick B. Starke Dist. 9 Hon. Richard Bresnahan, Carol Chazen Friedman, Tracy Hunsaker Gilroy, Hon. John F. Kintz, Thomas M. Lang, Howard A. Shalowitz, Lynn Whaley Vogel Dist. 10 C. Ronald Baird (ex officio), Virginia L. Fry, Wallace S. Squibb Dist. 11 William R. Bay, Thomas M. Burke, Thomas J. Casey, Jennifer M. Joyce, Mark Levison, Daniel A. Raniere Dist. 12 P. John Brady, Dana Tippin Cutler, Alan B. Gallas, Richard F. Halliburton, Charlie J. Harris, Jr., John S. Johnston, Walter R. Simpson, James C. Wirken Dist. 13 H. Lynn Henry Dist. 14 Eric J. Wulff Dist. 15 H.A. Skip Walther YLS Board of Governors Delegate - Aaron D. Jones Editorial Policy Journal of The Missouri Bar The Jo u r n a l o f Th e Mi s s o u r i Ba r assists members of The Missouri Bar in keeping abreast of changes in legal developments and in meeting their professional obligations. The o u r nj a l welcomes submission of articles relating to any legal topic of interest to Missouri lawyers. Criteria for publication include the quality of the article, its substantive value, its general interest to Missouri lawyers, and the originality of its subject matter. Articles of a historical nature, articles that relate to cases pending before any court or agency, and articles previously published in whole or substantial part will not be accepted for publication. Consistent with the Jo u r n a l s format, the language of submissions should be gender-neutral. The Jo u r n a l o f Th e Mi s s o u r i Ba r encourages all its members, including women and minorities, to contribute substantive law articles for publication. The Jo u r n a l is not copyrighted as a publication, but authors may copyright their individual articles. Opinions and positions stated in signed material are those of the authors and not necessarily those of The Missouri Bar or the Jo u r n a l. The material within this publication is presented as information for attorneys to use, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Editorial Board does not perform independent research on submitted articles. Publication of advertising material is not an endorsement by The Missouri Bar or the Jo u r n a l of the advertised product or service. Articles must conform to the Instructions for Authors and Conventions for Citations adopted by the Jo u r n a l, and which should be obtained before submission. Address all correspondence to: Gary P. Toohey, Editor Journal of The Missouri Bar 326 Monroe Street P.O. Box 119 Jefferson City, MO Journal of The Missouri Bar January-February 2008 Page 4

5 the Flag Trial Court Did Not Err in Setting Aside Default Judgment Cindy and Randall Brungard sued Risky s, alleging that Randall was injured when he slipped and fell on Risky s property. Later, the Brungards amended their petition and added Patti Cakes Baking Company as a defendant. James Wedig, one of the owners of Patti Cakes and its registered agent, was served with the summons. When Patti Cakes did not file a responsive pleading within 30 days following service, the Brungards moved for a default judgment and, following a hearing, the trial court entered a default judgment in favor of the Brungards. Less than a month later, Patti Cakes filed a motion to set aside the default judgment, along with an affidavit of James Wedig, stating that he believed he faxed the summons to his insurance agent and that he contacted his insurance agent immediately after he learned of the default judgment. Based on Wedig s affidavit, the trial court sustained Patti Cakes motion to set aside the default judgment. The Supreme Court of Missouri affirmed in Brungard v. Risky s, Inc. 1 Missouri appellate courts have traditionally afforded significant deference to the circuit court s decision to set aside a default judgment because of the public policy favoring the resolution of cases on the merits and the distaste our system holds for default judgments. 2 Broad discretion is afforded to trial court decisions granting motions to set aside a default judgment while the trial court has narrowed discretion in decisions denying W. Dudley McCarter Behr, McCarter & Potter St. Louis a motion. 3 Such deference has been afforded whether the evidence supporting the motion to set aside the default was presented through exhibits and affidavits or through live testimony. 4 Recently, the issue of the appropriate standard of review has been clouded because Missouri courts have disagreed regarding whether a motion to set aside a default judgment, if filed within 30 days after the default judgment, is an authorized after-trial motion or an independent action.... Now, pursuant to Rule 74.05(d), a motion to set aside the default judgment is treated as an independent action, and the trial court s decision to grant or deny the motion is treated as an independent judgment. It does not follow, however, that the amended rule alters the abuse of discretion standard of review that is applied to motions to set aside a default judgment. The rule amendment does not alter precedent that disfavors default judgments and establishes a strong preference for deciding cases on the merits. Abuse of discretion is the proper standard of review. Wedig s affidavit provides an adequate basis to support a finding that he did not intentionally impede the judicial process.... There are a number of cases in which a party has proven by sworn affidavit that the party s conduct was based on a mistake or conduct not intentionally or recklessly designed to impede the judicial process. 5 Wedig s affidavit stating his belief that he provided notice by appropriately forwarding the suit papers to his insurance company is sufficient to demonstrate that he was neither reckless nor intentionally dilatory in failing to file a timely answer. The circuit court did not abuse its discretion in crediting Wedig s affidavit and setting aside the default judgment. 6 Property Acquired in Contemp l at i o n o f Ma r r i a g e Fo u n d t o Be Marital Property Deanna D. Vinson appealed the trial court s judgment dissolving her marriage to Ray Vinson. The trial court found that the business at which they both worked, American Equity Mortgage (AEM), was marital property. The trial court divided marital property of approximately $73,000,000 in such a manner that Deanna received more than $61,000,000 and Ray received more than $11,000,000. Deanna 1 No. SC (Mo. banc 2007). 2 Brungard, quoting Continental Basketball Ass n. v. Harrisburg Professional Sports, Inc., 947 S.W.2d 471, 473 (Mo. App. E.D. 1997). 3 Brungard, citing Hopkins v. Mills-Kluttz, 77 S.W.3d 624, 626 (Mo. App. E.D. 2002). 4 Brungard, citing Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 542 (Mo. App. E.D. 2001). 5 Brungard, citing Gibson by Woodall v. Elley, 778 S.W.2d 851 (Mo. App. W.D. 1989). 6 Brungard. Journal of The Missouri Bar January-February 2008 Page 5

6 was awarded the company but was required to pay Ray $16,000,000 over four years. The trial court s judgment was affirmed in Vinson v. Vinson. 7 This dissolution matter, which had no child custody or support issues and no requests for maintenance by either party, consumed eleven days of hearings and over 2,700 pages of transcript. The trial court s detailed judgment is 54 pages long. The parties relentlessly visited this court during the pendency of the dissolution and can seemingly agree only that the marriage is irretrievably broken Deanna first contends that the trial court erred in finding American Equity Mortgage to be marital property because, under the doctrine of judicial estoppel, Ray was estopped from asserting an interest in the company because he had earlier disclaimed an interest during his bankruptcy and a 1994 deposition. 9 The application of judicial estoppel to bar a party from asserting an interest in property during division of property in a dissolution proceeding is an issue of first impression. Judicial estoppel applies to prevent litigants from taking a position in one judicial proceeding, thereby obtaining benefits from that position in that instance and later, in a second proceeding, taking a contrary position in order to obtain benefits from such a contrary position at that time. 10 [T]he United States Supreme Court has indicated that whether judicial estoppel applies requires the consideration of three factors: First, a party s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party s earlier position.... A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. 11 The trial court found that the term interest [in Ray s] bankruptcy petition was so vague in meaning that [his] 12 denial of any interest in American Equity Mortgage was of little significance. The trial court did not err in its finding that the meaning of interest was not sufficiently clear to justify the application of judicial estoppel and that Ray s later position was not clearly inconsistent with his earlier position. The trial court also found that Ray s statement from a 1994 deposition merely indicated that he did not, at that time, own stock in American Equity Mortgage, which was consistent with his position in the dissolution proceeding. In general, property acquired by a spouse prior to marriage is... separate property upon dissolution of marriage, and property acquired during the marriage is marital property subject to division. 13 However, property acquired in contemplation of marriage that is intended to be marital property has been construed to be marital property. 14 [S]ubstantial evidence supports the trial court s finding that [Deanna and Ray] formed AEM in contemplation of marriage. Ray and Deanna were engaged and living together when AEM was started and they worked together as a team to grow the business. In addition, evidence regarding the capitalization of AEM [i.e., Ray contributed approximately $7,000 to start the business] supports a finding that AEM was formed in contemplation of marriage. In Pe r o n a l In j u ry Su i t, Pl a i n- t i f f May Re c o v e r f o r Fu t u r e Da m a g e s Th at a r e Re a s o n a b ly Certain to Occur Anna Berthelsen was injured in an accident involving a truck driven by an employee of URS Corporation. Anna sustained severe head trauma and significant brain injuries. The evidence at trial established that Anna would most likely not be able to attend college and, therefore, lose approximately $1.5 million in wages. There was also evidence that she would need care nearly on a daily basis and that this would cost $8 million dollars. The jury returned a verdict for $25 million and the Court of Appeals affirmed in Berthelsen v. URS Corporation. 15 A plaintiff is entitled to recover for future damages as long as he or she can prove that the damages are reasonably certain to occur. 16 The degree of probability of such damages must be greater than a mere likelihood; it must be reasonably certain to ensue consequences which are contingent, speculative or merely possible may not be considered. 17 Usually, future damages are a matter of medical opinion that require expert medical testimony. 18 URS claims that, because Berthelsen s own experts could not opine with reasonable certainty that she will develop [any specific medical condition], she did not present sufficient evidence on future damages. Merely because Berthelsen did not present evidence on one particular type of future damages i.e. future surgeries or future diseases does not mean, however, that the circuit court erred in submitting the issue of future damages to the jury. The evidence... was sufficient to submit the issue to the jury. 19 URS also contends that the verdict was 7 No. E.D (Mo. App. E.D. 2007). 8 Id. 9 Id. 10 Id., quoting Besand v. Gibbar, 982 S.W.2d 808, 810 (Mo. App. E.D. 1998). 11 Id., quoting Zedner v. United States, 126 S.Ct (2006). 12 Id. 13 Id., quoting James v. James, 108 S.W.3d 1, 4 (Mo. App. S.D. 2002). 14 Id., citing Selby v. Selby, 149 S.W.3d 472, (Mo. App. W.D. 2004). 15 No. W.D (Mo. App. W.D. 2007). 16 Id., citing Swartz v. Gale Webb Transportation Corp., 215 S.W.3d 127, 130 (Mo. banc 2007). 17 Id., quoting McKersie v. Barnes Hospital, 912 S.W.2d 562, 566 (Mo. App. E.D. 1995). 18 Id. 19 Id. Journal of The Missouri Bar January-February 2008 Page 6

7 excessive. An excessive verdict can arise in two situations: when the jury makes an honest mistake in weighing the evidence as to the nature and extent of the injury and awards a disproportionate amount of damages and when the jury is biased by trial misconduct. 20 When the jury makes an honest mistake in calculating the damages, remittitur is appropriate without re-trial, but, if the jury is biased by trial misconduct, a new trial is appropriate. URS does not argue that trial misconduct prejudiced the jury and resulted in a grossly excessive verdict. It claims that the jury made an honest mistake in calculating the damages and a remittitur is required. We must exercise caution in interfering with a jury s award. We review the evidence in a light most favorable to the verdict, and only when a verdict is manifestly unjust should we intervene. Id. In evaluating the reasonableness of compensatory awards, courts typically use these factors: (1) loss of present and future income; (2) medical expenses; (3) plaintiff s age; (4) the nature and extent of plaintiff s injuries; (5) economic consideration; (6) awards approved in comparable cases; and (7) the trial court s and jury s superior opportunity to evaluate plaintiff s injuries and other damage. Id. at 928. Courts also may consider certain intangibles that do not lend themselves to precise calculation, such as past and future pain, suffering, effect on life-style, embarrassment, humiliation and economic loss. Id. The jury s award of $25 million dollars was not excessive and the court did not err in not remitting it. The evidence established that Berthelsen lost income potential of nearly $1.2 million 21 and would need support for the rest of her life at a cost of nearly $8 million. Although Berthelsen s award is on the high end of the spectrum of cases cited by the parties, we cannot say that the facts of this case do not justify the award. 22 Wh e n Da m a g e s Ar e Ca pa b l e o f As c e rta i n m e n t is An Ob j e c t i v e Sta n d a r d Herbert A. Graham filed suit against the Roman Catholic Archdiocese of St. Louis in July of 2003, alleging that he was sexually abused by a Catholic priest between 1983 and 1986, starting when he was 11 and ending when he was 14. Graham admitted that he always had memory of the priest s conduct, but stated he did not understand that these acts constituted sexual abuse. In 1995 and 1996, he informed his mother, his then-wife, and a friend about the acts of sexual abuse. In 1998, Graham confronted the priest regarding his acts of sexual abuse. The Archdiocese filed a motion for summary judgment contending that the claims were time-barred by the statute of limitations. The trial court granted this motion and the Court of Appeals affirmed in Graham v. McGrath. 23 The finding that plaintiff s claims were barred by the statute of limitations was not in error under Powell v. Chaminade College Preparatory, Inc. 24 In Powell, the Missouri Supreme Court explained that, in determining when damages are capable of ascertainment, the issue is not when the injury occurred, or when plaintiff subjectively learned of the wrongful conduct and that it caused his or her injury, but when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages. [T]he issue is not when a plaintiff is subjectively aware of his injury; subjective awareness of damages does not resolve the question of when those damages were objectively capable of ascertainment. 25 Under Powell, damages are capable of ascertainment when the evidence (is) such to place a reasonably prudent person on notice of a potentially actionable injury. 26 In 1995 and 1996, plaintiff had memory of the acts constituting sexual abuse, he was beginning to understand that he was a victim of sexual abuse, and he confided in his loved ones about these acts. 27 [T]he evidence was then sufficient to put a reasonable person on notice that an injury and substantial damages may have occurred, therefore, plaintiff s damages were capable of ascertainment in 1996, at the latest. 28 Because [p]laintiff filed his suit more than five years later in 2003, his causes of action against the Archdiocese are barred by the statute of limitations. 29 Inj u r e d Wo r k e r Mu s t Pl e a d a n d Pr o v e So m e t h i n g Ex t r a t o Ma i n ta i n a Ne g l i g e n c e Su i t Against His Supervisor James Scherzer brought a negligence suit against his supervisor, Jeffrey Patton, for the personal injuries he sustained while operating a book-trimming machine. Scherzer was injured when he stuck his hand into a chute that was clogged with paper while the book-trimming machine was still operating. Scherzer alleged that his supervisor told him to watch the chute for clogs, but did not instruct him on how to deal with the clogs, nor told that he should shut off the machine before trying to dislodge any blockage. Patton filed a motion to dismiss, raising the defense that Scherzer s exclusive remedy was under the workers compensation law. The trial court denied the motion, but the Court of Appeals made its preliminary writ absolute in State ex rel. Patton v. Grate. 30 The Workers Compensation Law is the exclusive remedy for injury 31 sustained by an employee from accidents arising 20 Id., citing Knifong v. Caterpillar, Inc., 199 S.W.3d 922, 927 (Mo. App. W.D. 2006). 21 Id. 22 Id. 23 No. E.D (Mo. App. E.D. 2007) S.W.3d 576 (Mo. banc 2006). 25 Id., citing Powell v. Chaminade College Prepatory, Inc., 197 S.W.3d 576 (Mo. banc 2006). 26 Id. at Id. 28 Id., quoting Powell, 197 S.W.3d at Id., citing (4), RSMo. 30 No. WD (Mo. App. W.D. 2007). 31 Id. Journal of The Missouri Bar January-February 2008 Page 7

8 out of and in the course of employment. [I]mmunity from negligence suits is extended to co-employees for failure to maintain a safe work environment. 32 A fellow employee may be sued, however, for affirmative negligent acts outside the scope of an employer s responsibility to provide a safe work place. 33 [W]hat constitutes an affirmative negligent act is not susceptible of reliable definition and must be determined on a case-by-case basis with close reference to the facts in each individual case. 34 [A]n affirmative act is one that creates additional danger beyond that normally faced in the jobspecific work environment. 35 [F]or a suit to escape the exclusive jurisdiction of the workers compensation law, the supervisor must have created a hazardous condition by personally directing the (employee) to engage in conduct that resulted in injury or causing the injury. 36 Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 578 (Mo. App. 2005). An affirmative negligent act is not synonymous with any negligent act, as the law requires a purposeful act directed at a co-employee. 37 Here, although the supervisor may have breached a duty to supervise or provide a safe workplace, his actions do not rise to the level of an affirmative, negligent act resulting in the employee s injury. Scherzer s petition fails to allege the something more that would permit him to seek a remedy outside the exclusive jurisdiction of the Workers Compensation law. Ord i n a n c e Re g u l at i n g Ju n k- yards Was Valid Exercise of Pol i c e Po w e r a n d Pr o t e c t e d Pu b l i c Health, Safety and Welfare St. Charles County filed suit against St. Charles Sign & Electric, Inc., requesting an injunction and payment of fines. In its suit, the county alleged that St. Charles Sign did not have fencing, in violation of the county s ordinance requiring it for businesses that store inventory outdoors consisting of reclaimed, junked, salvaged, scrapped or otherwise previously used inventory. The trial court entered judgment in favor of St. Charles Sign, but the Court of Appeals reversed in St. Charles County v. St. Charles Sign & Electric, Inc. 38 [T]he ordinance at issue here was enacted pursuant to the police power of St. Charles County. 39 The purpose of police power is to promote the public health, safety and welfare. 40 While police power is not unlimited, it is very broad. To determine whether or not an ordinance is enacted pursuant to a legitimate exercise of police power, the court considers whether the requirements of the ordinance have a substantial and rational relationship to the health, safety, peace, comfort and general welfare of the inhabitants of the municipality. If an ordinance is enacted pursuant to valid police power under this test, the ordinance is presumed valid. The party challenging the ordinance must negate every potential basis that might support it. 41 If reasonable minds might differ as to whether a particular ordinance has a substantial relationship to the protection of the general health, safety or welfare of the public, then the issue must be decided in favor of the ordinance. 42 Here, St. Charles County sought to regulate the outdoor storage of essentially scrap or junk items by businesses, and as in the regulation of junkyard storage of such items, sought to regulate potential nuisances for health and safety reasons. 43 The ordinance requires that essentially junk or scrap inventory stored outdoors must be enclosed by a fence. 44 [T]he ordinance... protects against unsightliness, as well as any potential safety hazard to the public. 45 [T]he requirement that particular inventory stored outdoors must be enclosed by a fence bears a substantial and rational relationship to the health, safety, peace and general welfare of the public, and the ordinance is a proper use of St. Charles County s police powers. 46 Moreover, the ordinance at issue [here] was not a zoning ordinance; 47 therefore, St. Charles Sign is not relieved from complying with the ordinance as a nonconforming use. Also, because the regulation at issue here was a valid exercise of St. Charles County s police power, no regulatory taking occurred. The ordinance in question expressly defines the specific inventory subject to the fencing requirement.... There is statutory and common law authority supporting the enactment of the ordinance pursuant to St. Charles County s police powers. 48 Jury Verdict for Actual Damages Based on Wrongful Employ - m e n t Te r m i n at i o n Up h e l d, Bu t Re m a n d e d f o r Re c o n s i d e r at i o n of Punitive Damages Kyle Kelly worked as a loss prevention agent for Bass Pro Outdoor World. Several Bass Pro employees observed a car on the Bass Pro parking lot that appeared to be abandoned. One of the employees used a slim jim to open a door of the vehicle and then searched through it in an effort to find ownership information. This entry was recorded by a security camera. Kelly learned of this entry into the vehicle, and believing a crime had been committed by the employee who did it, reported 32 Id., citing State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 621 (Mo. banc 2002). 33 Id., quoting State ex rel. Taylor v. Wallace. 34 Id. at Id., quoting Burns v. Smith, 214 S.W.3d 335, 338 (Mo. banc 2007). 36 Id. quoting Nowlin ex rel. Carter v. Nichols, 163 S.W.3d 575, 578 (Mo. App. W.D. 2005). 37 Id. at No. ED (Mo. App. E.D. 2007). 39 Id., citing City of Green Ridge v. Kreisel, 25 S.W.3d 559 (Mo. App. W.D. 2000). 40 Id., quoting Bezayiff v. City of St. Louis, 963 S.W.2d 225, 229 (Mo. App. E.D. 1997). 41 Id., citing Bezayiff. 42 Id., quoting Bezayiff. 43 Id. 44 Id. 45 Id. 46 Id. Journal of The Missouri Bar January-February 2008 Page 8

9 the incident to management. Kelly was instructed to not talk to anyone else about it, but Kelly did discuss it with another employee. Kelly was then terminated for disobeying the order that he refrain from discussing the incident with anyone else. Kelly filed a wrongful termination suit against Bass Pro, alleging that he was a whistle blower and terminated in violation of the public policy exception to Missouri s employment-at-will doctrine. The jury found in Kelly s favor, awarding him $4,300 in actual damages and $2.8 million in punitive damages. The Court of Appeals affirmed the verdict for actual damages, but remanded the punitive damages award in Kelly v. Bass Pro Outdoor World, LLC. 49 The employment-at-will doctrine provides that an employer can discharge an at-will employee at any time for cause or without cause. 50 One public policy exception to the at-will employment doctrine provides that an at-will employee who has been discharged by an employer in violation of a clear mandate of public policy has a cause of action against the employer for wrongful discharge. 51 In Dunn v. Enterprise Rent-A-Car, 170 S.W.3d 1 (Mo. App. E.D. 2005), this Court held it was unnecessary for an employee to allege or prove conclusively the law has been violated in order to state a cause of action, when the employee held a reasonable belief that illegal conduct or conduct against a clear mandate of public policy has occurred. 52 Moreover, public policy encourages an employee to report suspected wrongdoing by co-workers, which he or she reasonably believes to have occurred. 53 Here, we believe Kelly made a submissible case for wrongful termination based upon his reasonable belief that [another employee] committed a crime by entering [into the] vehicle 54 parked on the parking lot, without the owner s consent. Moreover, there was ample evidence presented that linked Kelly s termination with the reporting of the incident. 55 A submissible case [for punitive damages] is made if the evidence and the inferences drawn therefrom are sufficient to permit a reasonable juror to conclude that the plaintiff established with convincing clarity that is, that it was highly probable that the defendant s conduct was outrageous because of evil motive or reckless indifference. 56 Kelly presented sufficient evidence to submit the issue of punitive damages to the jury. As a general matter, the assessment of punitive damages is a function left primarily for the jury. 57 [F]ew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. 58 Moreover, an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. 59 Further, [the court] must ensure the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered. 60 In this case, Kelly was awarded $4, in compensatory damages... and $2.8 million in punitive damages. This resulted in a ratio of 651 to 1. This ratio raises a presumption of unconstitutionality [under] Campbell. 61 Upon examining whether the punitive damages award was reasonable and proportionate to the harm Kelly suffered by being terminated and unemployed for a relatively brief time, we must find the award is excessive and disproportionate. 62 The punitive damage award is reversed and remanded to the trial court for reconsideration consistent with this opinion. 47 Id. 48 Id. 49 No. ED (Mo. App. E.D. 2007). 50 Id., citing Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859, (Mo. App. W.D. 1985). 51 Id., quoting Williams v. Thomas, 961 S.W.2d 869, 873 (Mo. App. S.D. 1998). 52 Id. 53 Id., citing Dunn v. Enterprise Rent-A-Car, 170 S.W.3d at 10 (Mo. App. E.D. 2005). 54 Id. 55 Id., citing Dunn, 170 S.W.3d at Id., quoting Brady v. Curators of the University of Missouri, 213 S.W.3d 101, 109 (Mo. App. E.D. 2006). 57 Id., citing Miller v. Levering Regional Healthcare Center, 202 S.W.d 2d 614, 618 (Mo. App. E.D. 2006). 58 Id., quoting State Farm Mut. Ins. v. Campbell, 538 U.S. 408, 424, 123 S. Ct (2003). 59 Id. 60 Id. at Id. 62 Id. Journal of The Missouri Bar January-February 2008 Page 9

10 the president s page When Good People Have Bad Ideas Charlie J. Harris, Jr. Berkowitz, Oliver, Williams, Shaw & Eisenbrandt, L.L.P. Kansas City Afew years ago, a popular book appeared on bookshelves around the nation. It was entitled When Bad Things Happen to Good People. I m often reminded of that title when I look at some of the proposals currently being considered by the Missouri General Assembly. Were I to write a book about these measures, a good title might well be When Good People Have Bad Ideas. As the title of my fictitious book implies, I am confident that the proponents of these measures are intelligent, decent, well-meaning people, who are doing what they believe is good for their constituents, and indeed, for the people of Missouri. Regardless, they are misguided if they believe these proposals which would further inject partisan politics into the Missouri Non-Partisan Court Plan are in the best interests of our state. The Missouri Plan, as our non-partisan selection plan is widely known, is successful because it avoids the intrusion of politics into a process that should be completely non-political. The selection of judges is not, and should not be, dependent upon the whims of the prevailing political powers. It is crucial that we attract men and women to the bench who are prepared to make difficult decisions based solely on the applicable law not the whims of politicians who played a role in placing them in their positions. The measures that have been introduced for consideration during this year s legislative session fall far short of that standard. For example, HJR 49 proposes a constitutional amendment increasing the number of gubernatorial appointments to the Appellate Judicial Commission the group of lawyers and non-lawyers who nominate three persons from among all applicants to fill vacancies on the state s appellate courts. Currently, the commission is composed of one non-lawyer appointed by the governor from each of the three state appellate districts; one lawyer elected by his or her colleagues from each of the three appellate districts; and the Chief Justice of the Supreme Court of Missouri, who serves as chair of the commission. The current makeup of the commission preserves an appropriate balance among the bench, the bar, and the citizenry. HJR 49 would authorize the governor to appoint a total of five non-lawyers to the commission, without regard to the appellate districts in which they reside. This measure would lead to domination of the commission by gubernatorial appointees, thereby giving the governor greater control over the selection of judges. To let the governor select, and have political influence over, the majority of commission members would allow the governor to virtually hand-pick those who would become judges. Moreover, this proposal would eliminate the geographical diversity inherent in the current Non-Partisan Court Plan. Thus, although it would give the process a facade of impartiality, ostensibly giving the people a greater voice in the commission s operations, passage of HJR 49 would result in politicizing the process by which Missouri selects its appellate judges. Another proposal that sounds appealing on its face but is actually fraught with danger is HJR 52. This measure would altogether eliminate the Appellate Judicial Commission, as well as the circuit judicial commissions that exist in each of the five jurisdictions that select their trial court judges via the Non-Partisan Plan. In their place, this resolution would provide for a bi-partisan commission equally balanced in political factions, which commission chooses five qualified judicial applicants on the basis of merit for the office from which the governor must pick one nominee. The concept of a truly bi-partisan commission sounds wonderful but the devil is in the details. Instead of members of The Missouri Bar selecting their representatives on the commission, the governor would choose two lawyers each from different political parties to serve on the commission. In addition, the governor would appoint two non-lawyers also from different parties to the commission. But here is where it really gets interesting. In addition to these four members, the bi-partisan commission would include: One person appointed by the speaker of the Missouri House of Representatives; One person appointed by the minority leader of the House; One person appointed by the president pro tempore of the Missouri Senate; One person appointed by the minority leader of the Senate; and Two members of The Missouri Bar each from different political parties appointed by the Missouri Attorney General. The salient inquiry is this: How is it that Journal of The Missouri Bar January-February 2008 Page 10

11 an entity that is composed of appointees by the governor, the attorney general, and legislative leaders all political offices can remain non-political? In this scenario, it is important to remember that bi-partisan is not a synonym for non-partisan. Furthermore, the governor s judicial appointee would require confirmation by the Missouri Senate prior to assuming the bench! The potential for deal-making and political manipulation of a judicial vacancy in that situation is undeniable, particularly if the governor and the majority party in the Senate are from different political parties. All the bipartisanship in the world cannot remove the obvious political pitfalls of this proposal. This all brings me to a key question: Why are these misguided measures even being considered? Generally, the hallmarks of a judicial system in need of reform are (1) corruption, (2) judicial activism, and (3) judges and a citizenry who have no respect for the rule of law. Here in Missouri, these elements are clearly not present to any significant degree. This was confirmed by a recent survey commissioned by The Federalist Society one of the very groups seeking changes to our non-partisan selection method which found that 68 percent of Missourians have confidence in the Supreme Court of Missouri. As has been the case with similar measures in the past, proponents of illconceived measures such as HJR 49 and HJR 52 will attempt to extol them as a way to promote open government and public access to the process of judicial appointments. But as the survey commissioned by The Federalist Society clearly indicates, opponents of the Non-Partisan Plan are having difficulty with the fact that Missourians have a justifiable confidence in the integrity of their state courts and the judges who serve in them. Missourians are smart enough to recognize the problems created by doing away with the current non-partisan system if they have the facts available to them. Accordingly, I am asking all members of The Missouri Bar to do what they can to enlighten their friends and neighbors concerning the threats facing our non-partisan selection system. Speak up to individuals and neighborhood or civic groups; write letters to your local newspaper; contact your legislators to register your opposition to the insertion of politics into the selection of non-partisan judges; and encourage others to do the same. Working together, we can shine the light of truth on these types of measures and retain the good system that has proven beneficial to the justice system in Missouri over many years, and has been emulated by other states. A Special Invitation from the Supreme Court of Missouri Historical Society The Officers and Trustees of the Supreme Court of Missouri Historical Society cordially invite you to become a Member of the Society. The Society is a Missouri not-for-profit corporation that exists to collect history on the legal profession of Missouri, to encourage research of records and memorabilia relating to the Supreme Court, to promote increased knowledge of the history of the state s judicial system, and to lead in the preservation and enhancement of the historic Supreme Court building and its contents. Annual membership in the Society is $25, but is also available in any of several contribution levels. In addition, life membership is available to interested persons. To join the Society or to obtain additional information, write to the Supreme Court of Missouri Historical Society at P.O. Box 448, Jefferson City, MO 65102, or call the Society at (573) Special Limited Edition of Supreme Court Building Now Available The Supreme Court of Missouri Historical Society has commissioned celebrated artist John Stoeckley the creative force behind the Reflections of Missouri pen and ink collection of notable Missouri sites to create an original special edition lithograph depicting the Missouri Supreme Court to mark the building s centennial year. This limited-edition fine art print is hand-signed by the artist and numbered. Only 300 copies of these signed prints are available, and additional copies will not be made when the edition is sold out. Prints may be purchased unframed or framed. The latter are triple-matted and framed in cherry wood to 20 inches by 24 inches. Framed prints may also be customized with a 1-by-3 inch brass plate inscribed with a special dedication. A choice of three mat colors is also available. To order your copy of this limited edition print, contact the artist at his gallery in Louisiana, Missouri by calling (573) , or by contacting the Society at the address and telephone number listed above. Journal of The Missouri Bar January-February 2008 Page 11

12 Discovery of Electronically Stored Information This article describes the amendments to the Federal Rules of Civil Procedure related to discovery of electronically stored information, discusses how Missouri courts may address these issues, and outlines the associated duties of counsel. I. In t r o d u c t i o n Discovery issues centering on electronically stored information (ESI) have been around for years, but as technology races ahead and fundamentally changes the way people communicate and store information, the legal system finds itself struggling to keep up. ESI discovery is not an issue relegated to large, sophisticated parties in immense federal lawsuits. It is a fact of life for all courts, at every level, and in all types of legal actions. The legal community s attention focused on ESI discovery when amendments to the Federal Rules of Civil Procedure concerning ESI went into effect on December 1, In the months that followed, courts and commentators analyzed, applied, and construed the changes. This article summarizes the federal changes and examines how Missouri courts, under the current Supreme Court Rules, 2 would likely address the most common ESI discovery issues. Although ESI disputes are not yet a standard feature in most Missouri courts, they inevitably will be. A. What is Electronically Stored Information? ESI includes any information stored in an electronic as opposed to paper form and includes a virtually limitless list including s, presentation files (e.g., Power Point), spreadsheets (e.g., Excel), word processing files (e.g., MS Word, Word Perfect), databases, audio files, picture files, and web pages. ESI can be Clayton L. Barker 1 Philip W. Goodin 1 stored in a vast array of media, including hard drives, servers, diskettes, CD-ROMs, cell phones, thumb drives, and handheld wireless devices. B. Why Amend the Federal Discovery Rules? Numerous cases applied the pre-amendment federal rules to ESI discovery disputes. 3 These courts determined that ESI, although not a perfect fit, came within the term document, as used in pre-amendment Federal Rule 34(a), which defined document to include data compilations. 4 Rule 58.01(a)(1) more clearly defines documents to include electronic records, and other data compilations from which information can be obtained.... Specific amendments to the Federal Rules of Civil Procedure, however, were necessary because existing case law did not adequately address essential differences between ESI and paper documents. The federal amendments sought to apply basic discovery concepts to ESI s unique characteristics and thus seek to be more evolutionary than revolutionary. There are several fundamental differences between paper and ESI discovery. First, the traditional paper-focused discovery process involved producing boxes of paper documents for inspection or copying, whereas discovery of ESI involves producing electronic files. Second, ESI discovery can be far more expansive than traditional discovery. Informal communications that once occurred as ephemeral conversations 1 Clayton L. Barker is engaged in private practice in Leawood, Kansas, focusing on electronic discovery, and is a 1997 graduate of the University of Kansas School of Law. 2 Although it is attentive to issues presented by ESI discovery, the Supreme Court of Missouri has no imminent plans to amend or supplement the current rules with ESI specific provisions. 3 See, e.g., Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 and n.38 ( Zubulake I ). Judge Scheindlin authored seven opinions in this case; four are frequently cited regarding ESI. The opinions, however, pre-date the new federal rules. 4 Fe d. R. Civ. P. 34(a). Journal of The Missouri Bar January-February 2008 Page 12

13 are now recorded for posterity as s. Electronic files are notoriously difficult to erase or delete. ESI can be stored in numerous locations ranging from centralized servers to personal cell phones. Additionally, every electronic file contains not only the file s substance but background information about the file, usually called meta or embedded data. 5 Last, almost all computer systems contain discoverable system data. 6 Third, ESI discovery can be far more burdensome and costly than traditional discovery. Many courts, 7 including the United States Supreme Court, 8 have raised concern on the corrosive effects that the excessive costs of discovery are having on the administration of justice. Several factors account for the increased cost of ESI discovery. ESI is stored in vastly greater volumes (a phenomena sometimes called information inflation ). The time, cost, and effort to review ESI for relevance, responsiveness, and privilege increase in direct proportion to the volume. Lawyers must often use specialists to assist in ESI discovery to obtain, organize, and sort through the potentially responsive information. Erased data, data stored on obsolete systems, and data stored only for disaster recovery can be transformed into useable forms, but often only at great cost. Fourth, ESI discovery presents unique technical issues not associated with paper discovery. ESI can be produced in different forms. It can be printed on paper, scanned to a disk, or the electronic file itself can be produced. Some ESI, such as databases, cannot be reduced to paper form because they were designed only to create reports based on criteria from the operator. Concepts applicable to paper documents, such as original and copy do not apply to ESI. Electronic files, unlike paper documents, can easily be organized and searched based on their content, allowing parties to run automatic searches for key words, phrases, or names as well as creation dates. ESI also presents unique issues concerning preservation of evidence. Computer storage systems work by overwriting and deleting information without the operator s specific direction or knowledge. Moreover, some ESI was intended only as short-term information and is difficult to preserve. C. What Were The Goals of the Federal Rule Amendments? Given ESI s unique properties, the federal rule amendments sought to address these differences in a manner consistent with the spirit set forth by the mandate of Federal Rule of Civil Procedure 1 for the just, speedy, and inexpensive determination of every action. Missouri has a similar guiding provision, Rule 41.03, which directs that the rules shall be construed to secure the just, speedy and inexpensive determination of every action. The federal amendments address seven goals: Designate a third category of discoverable materials documents, tangible things, and now ESI and amend existing rules with ESI-specific provisions. 9 Compel the parties and the court to address ESI discovery issues early in the litigation process to resolve costly potential disputes. Lower the cost and expansiveness of ESI discovery by creating a presumption that ESI not reasonably accessible due to excess cost or burden is not discoverable. Specifying acceptable forms for ESI production. Lower the cost and burden of reviewing ESI by clarifying that inadvertent disclosure of privileged ESI to another party usually does not constitute a waiver of privilege. Address ESI s unique storage features by creating a safe harbor from sanctions for good faith, routine destruction of ESI. Modify the rules governing subpoenas to track the changes to other discovery rules. II. The Attorney s New Roles The principles that have guided discovery for decades remain firmly in place; ESI has merely created new issues to which the old principles apply. Discovery still seeks information on designated subjects; ESI merely expands the number of potential sources. The attorney s role in the process has not changed, but in some cases the combination of ESI s unique nature and the new discovery rules result in new roles for attorneys. If ESI discovery will play an important role in particular litigation, the attorney must become knowledgeable of the various aspects of ESI discovery so that the attorney can competently perform the discovery process. A. The Need to Understand ESI Discovery As an initial matter, a lawyer s basic duties remain unchanged. A lawyer must possess the legal knowledge, skill, thoroughness and preparation reasonably necessary to undertake ESI discovery tasks. 10 A lawyer must communicate with and properly advise the client on preservation and discovery obligations concerning ESI. 11 Last, a lawyer must ensure that representations concerning ESI made to the court are correct. 12 When ESI discovery issues are important to a case, both the in-house and outside counsel must be knowledgeable of the client s ESI systems, the client s ESI retention, storage, and destruction procedures, and the applicable discovery rules and case 5 Metadata is information about a particular file which describes how, when, and by whom the file was created, accessed, or modified; its size; and how it is formatted. Embedded data include commands that control data, such as formulas in spreadsheets. 6 System data is information about the computer system, as opposed to a particular file, that includes when people logged on and off a computer, the programs and passwords they used, what files they accessed, and what websites they visited. 7 Zubulake I, 217 F.R.D. at 311 ( [D]iscovery is not just about uncovering the truth, but also about how much of the truth the parties can afford to disinter. ). 8 Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007). 9 Fe d R.Civ. P See Rule See Rules and See Rule Journal of The Missouri Bar January-February 2008 Page 13

14 law. 13 Federal Rule of Civil Procedure 26(g) requires that an attorney must certify that every discovery response or objection was formed after a reasonable inquiry, which creates an affirmative duty to fully investigate all discovery responses. In conducting this investigation, an attorney can rely on the client s assertions but only to the extent it is reasonable to do so. To satisfy this standard, the attorney may need to conduct an extensive conversation with knowledgeable employees. Having this type of conversation may initially be a daunting task to attorneys who are not familiar with the technical aspects of computer systems, but it is necessary to properly represent a client, to reduce costs, to comply with discovery rules, and to avoid sanctions for inadvertent spoliation of potentially responsive materials. B. Negotiating ESI Protocols with Opposing Counsel One of the most important functions the attorney plays in grappling with ESI issues is to negotiate a protocol for the preservation, collection, and production of ESI. Absent an explicit understanding with opposing counsel, attorneys may wind up having their efforts second-guessed by opposing counsel or the court which could very likely lead to duplicative efforts, unnecessary costs, insufficient searches and production, and accusations of evidence spoliation. The importance of this role is reflected in the new federal rules which now require opposing counsel to meet early and thoroughly discuss ESI issues to identify and resolve disputes before conducting costly, time-consuming searches and document productions. This requires counsel to be familiar with their respective client s systems before they meet and to know what questions to ask of each other. Three federal rule changes addressed this goal. New Federal Rules of Civil Procedure 26(f)(3) and (4) require the parties to discuss ESI issues. The list of topics is limitless but includes what ESI is relevant, how it is stored, preservation plans, cost sharing, privilege waiver, and forms of production. Excellent topic checklists are in the District of Maryland s Suggested Protocol for Discovery of Electronically Stored Information 14 and the District of Kansas Guidelines for the Discovery of Electronically Stored Information. 15 It is a good practice to memorialize all agreements between the parties in a court order. New Federal Rules of Civil Procedure 16(b)(5) and (6) require the court s scheduling order to address designated ESI and privilege issues. Amended Federal Rule of Civil Procedure 26(a)(1)(B) requires each party to disclose ESI it may use to support its claims or defenses. Missouri has no corresponding procedural rules because it does not require the structured discovery process used in the federal courts. Nevertheless, in cases in which ESI discovery is anticipated to play a material role, early discussion and agreement is the best course of action. A circuit court can always issue discovery or scheduling orders under its inherent power and Rule 56.01(f) permits parties to stipulate their own discovery procedures. C. Supervising ESI Preservation, Collection, and Review To avoid unintentional loss, counsel must advise and supervise the client s efforts to preserve and collect all potentially relevant ESI. At this point in the process, if the ESI discovery effort is large or complex and if the client lacks sophisticated in-house technical resources, counsel should consider retaining outside expert assistance from vendors who specialize in ESI litigation support. These include specialists in preserving, reviewing, indexing, and producing ESI, as well as forensic experts who specialize in the recovery of deleted or other hard-to-get ESI. To properly preserve and collect data, the attorney will need a data map or list of all possible sources of potentially responsive ESI. The list of where to look can be extensive and can include centralized servers, office computer hard drives, loose disks or CDs, portable wireless devices, home computers, voice mail files, external storage devices (thumb drives), back-up tapes, 16 legacy data, 17 and deleted data. 18 The attorney will also need to advise on the best way to preserve this data. Once the ESI is preserved, the attorney must supervise the review of the potentially responsive ESI to identify responsive and privileged ESI. If the universe of potentially responsive ESI is large enough, the initial review is conducted automatically by searching for ESI with designated terms and date parameters. Other additional automatic steps, such as de-duplication removing duplicative copies can also be implemented. Once the potentially relevant ESI is culled down by automatic procedures, the review s final step is done the old-fashioned way by humans reading each or document to determine its relevance, importance, and privilege status. Given the volume of ESI, this can be a costly and time-consuming endeavor. Because the opposing party can discover the process used to preserve, review, and produce the ESI, it is common for the parties to agree beforehand on search terms and other process details to avoid protracted and costly post-production discovery battles. 13 Cache La Poudre Feeds, LLC v. Land O Lakes, Inc., 244 F.R.D. 614, (D. Colo 2007). 14 Suggested Protocol for Discovery of Electronically Stored Information ( ESI ), United States District Court for the District of Maryland, Local Rules, available at (last visited January 3, 2008). 15 Guidelines for Discovery of Electronically Stored Information, United States District Court for the District of Kansas, Guidelines, available at uscourts.gov (click on Guidelines ) (last visited January 3, 2008). 16 Backup Tapes refer to exact copy of an entire computer system that permit a recreation of the entire system in the event of a system disaster. Generally, the tapes cannot be searched to identify, access, or retrieve individual files. 17 Legacy Data is information created or stored with software or hardware that has become obsolete or replaced, and thus it may be costly to restore or reconstruct. 18 Deleted Data is formerly active data that has been marked as available for overwriting and is no longer accessible by the operator even though all or some of the data remains. Journal of The Missouri Bar January-February 2008 Page 14

15 III. Pro d u c t i o n Issues Un i q u e To ESI Under the old discovery paradigm, there was a duty to produce responsive, relevant, and non- privileged information, unless the court sustained an objection or the producing party received a protective order. Under new Federal Rule of Civil Procedure 26(b)(2)(B), however, there is no duty to produce otherwise responsive, relevant, and non-privileged ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. A. Responding to a Request to Produce ESI In response to a request for production, only reasonably accessible ESI that is otherwise responsive, relevant, and not privileged is produced. Not reasonably accessible ESI is presumed non-discoverable and the producing party must merely identify and describe the unreasonably accessible ESI it is not producing. The producing party should provide adequate detail to allow others to evaluate the cost, burden, and likelihood of finding responsive information. This creates a two-tiered approach to discovery. In most cases, the first tier, comprised of easily accessible ESI, will provide all reasonably useful information. In rare circumstances, the parties may need and obtain discovery of the second tier that is not reasonably accessible. B. Distinguishing Reasonably from Unreasonably Accessible ESI The issue thus becomes the reasonableness of the ESI s accessibility. Keep in mind that there is no such thing as inaccessible ESI. If this information exists, it is accessible. Constant technological changes, however, make a specific definition of reasonable accessibility unworkable. The most common approach 19 to determining the reasonableness of accessibility looks to which ESI is used in the ordinary course of business and thus presumably does not require costly or burdensome effort to be useable. Reasonably accessible ESI is, therefore, that which is used in the ordinary course of business or available with little time or expense and includes active data (stored on a hard drive, server, or on disks but subject to robotic retrieval) and offline storage or archives. 20 On the other hand, unreasonably accessible ESI includes legacy data (created by systems no longer used), deleted or fragmentary data, and disaster recovery back-up tapes that are not searchable. Note that designating ESI as not reasonably accessible does not relieve a party of its duty to preserve it. Furthermore, absent a material change in search technology, what a party claims is not reasonably accessible in one case must be inaccessible in all cases. C. Challenging an Opposing Party s Not Reasonably Accessible Designation The requesting party may dispute a designation of unreasonably accessible ESI by filing a motion to compel. The producing party could also move for a protective order to confirm its unreasonably accessible designation. As always, the parties should discuss the issue and seek a compromise before going to the court. The producing party bears the burden of demonstrating unreasonable accessibility with specific facts. To challenge the unreasonably accessible characterization, the requesting party usually needs discovery to support its argument (a practice often referred to as discovery about discovery ). Such discovery may include deposing those with system knowledge, 21 depositions of experts, or a sampling of data to verify accessibility claims concerning cost, burden, and data type. Challenging accessibility is a fact-oriented dispute and needs specific estimates of time, cost, required efforts, technology system characteristics, and anticipated results. Expert affidavits are usually necessary. D. Showing Good Cause to Produce Unreasonably Accessible ESI Under new Federal Rule of Civil Procedure 26(b)(2)(B), if the court characterizes the ESI as not reasonably accessible, the requesting party could still obtain the ESI if it shows good cause for the discovery in light of Federal Rule of Civil Procedure 26(b)(2)(C) s factors: (i) whether the ESI is unreasonably cumulative or duplicative, or is obtainable from a less burdensome source; (ii) whether the requestor has had the opportunity to seek the information by other means; and (iii) whether the burden or expense outweighs its likely benefit, [taking into account] the needs of the case, the amount in controversy, the parties resources, the importance of the issues, and the ESI s importance in resolving the issues. The official notes to Federal Rule of Civil Procedure 26(b)(2) set out additional factors to consider in making the good cause determination: (1) the specificity of the request; (2) the quantity of information from more available sources; (3) the failure to produce relevant information that may have once existed but is no longer available on more easily accessible sources; (4) the likelihood of finding relevant information that cannot be obtained on more easily accessible sources; (5) the predictions on usefulness and importance of information; (6) the importance of issues at stake in litigation; and (7) the parties resources. Good cause is inherently difficult to show because neither party will know specifically what is in the unreasonably accessible ESI at issue. If good cause for production is shown, the court can limit the discovery or specify conditions for production. 19 See Zubulake I, 217 F.R.D. at Archival data is information that is intentionally maintained in long-term storage, but not immediately accessible to a computer system user. It is typically stored in an organized way to help identify, access, or retrieve individual records or files. 21 Federal Rule of Civil Procedure 30(b)(6) permits deposing a person knowledgeable of a party s computer system. Heartland Surgical Specialty Hosp. LLC v. Midwest Div., Inc., Slip Copy No MLB-DWB, 2007 WL (D. Kan., Apr. 9, 2007) provides guidance on the deposition notice s contents and what the deponent should know. Journal of The Missouri Bar January-February 2008 Page 15

16 E. Shifting Production Costs to the Requestor Cost shifting is one of the most litigated aspects of ESI discovery. Cost-shifting is not unique to ESI, although, in the ESI context, it is frequent and applies unique factors. In federal court, the presumption has always been that the producing party pays the costs of production, although in rare circumstances, cost shifts have been permissible under Federal Rule of Civil Procedure 26(c). 22 The no-discovery presumption for unreasonably accessible ESI makes cost-shifting a more frequently granted condition for discovery. There are numerous cost-shifting approaches. One approach is to flexibly apply Federal Rule of Civil Procedure 26(b)(2)(C) s factors. 23 Another approach is a marginal utility analysis, which weighs the likelihood that a request would unearth important information against the cost of obtaining it. 24 The lower the likelihood of discovering important information, the more likely the costs will be shifted to the requestor. Additionally, there are several multifactor approaches. The Zubulake decisions applied seven weighted factors: 1. The extent to which the request is specifically tailored to discover relevant information; 2. The availability of such information from other sources; 3. The total cost of production, compared to the amount in controversy; 4. The total cost of production, compared to the resources available to each party; 5. The relative ability of each party to control costs and its incentive to do so; 6. The importance of the issues at stake in the litigation; and 7. The relative benefits to the parties of obtaining the information. 25 The American Bar Association, 26 The Sedona Conference, 27 and the Conference of Chief Justices 28 all have recommended multi-factor approaches. A simpler approach has been adopted by Texas, which simply mandates that the requesting party always pays the extraordinary production costs of not reasonably accessible ESI. 29 Under this approach, if the requesting party truly believes that important information is to be found in the unreasonably accessible ESI, it will be willing to pay for it. F. Addressing A Request To Mirror Image A Computer Hard Drive One of the most frequently litigated ESI production issues is whether the requestor can mirror image make an exact copy of the producer s entire computer hard drive. Mirror imaging captures all information on the hard drive, not just relevant information. Luckily, the courts have applied a consistent approach to this issue. As an initial matter, a request for production does not automatically permit the requestor to search around a hard drive looking for interesting information, just as it does not permit a requestor to poke around in the producer s paper file drawers. A request for production is not a search warrant. 30 Moreover, absent a basis for reasonable doubt, a court is bound to accept the producer s representation that all relevant information has been produced. 31 Courts, however, have approved mirror imaging in two situations: 32 first, when the computer itself is at the heart of the litigation, that is, an instrumentality of the alleged wrongdoing, which often occurs in computer fraud and theft of trade secret cases; second, when there is a reasonable basis to believe that relevant information likely to be on the hard drive has not been produced. This often occurs when there is suspicion that ESI files have been deliberately deleted. Although an operator cannot retrieve deleted information, the information is often still present on the hard drive and can be retrieved by a computer forensic expert. If a request for a mirror image is granted, the court usually approves a protocol to protect the producer s privacy and confidential information. 33 Generally, a forensic computer expert will be tasked with copying the hard drive, searching the hard drive for certain key terms, and then listing responsive contents. The producer s attorney then reviews the list and produces responsive materials and lists privileged materials on a privilege log. G. How a Missouri Court May Address Requests for Unreasonably Accessible ESI Missouri s discovery rules are similar to the pre-amendment federal rules and have no specific provisions applicable to unreasonably accessible ESI. A Missouri court 22 Oppenheimer Fund, Inc., v. Sanders, 437 U.S. 340, 358 (1978). 23 See e.g., Thompson v. U.S. Dep t of Hous. & Urban Dev., 219 F.R.D. 93, 98 (D. Md. 2003) (Grimm, J.); Analog Devices Inc. v. Michalski, No. 01 CVS 10614, 2006 WL (N.C. Super. Nov. 1, 2006). 24 See, e.g., McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D. D.C. 2001). 25 Zubulake I, 217 F.R.D. at 322 (describing cost-shift analysis); Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D. N.Y. 2003) (Zubulake III) (applying costshift analysis). 26 Section of Litigation, American Bar Association, Civil Discovery Standards, Civil Di s c o v e ry Sta n d a r d s*, American Bar Association, 2004 Amendments, 29(b)(iv) (2004), available at 2004civildiscoverystandards.pdf (last visited January 3, 2008.) 27 Th e Se d o n a Pr i n c i p l e s Ad d r e s s i n g El e c t r o n i c Do c u m e n t Pr o d u c t i o n (The Sedona Conference, July 2005) available at See Working Group Series, WG1: Electronic Document Retention and Production. 28 Richard Van Duizend, Co n f e r e n c e o f Ch i e f Ju s t i c e s, Gu i d e l i n e s f o r St at e Tr i a l Co u rt s Re g a r d i n g Di s c o v e ry o f El e c t r o n i c a l ly-st o r e d In f o r m at i o n (NCSC Publications 2006) available at CCJGuidelines.pdf. 29 Texas Rule of Civil Procedure ( If the court orders the responding party to comply with the request [for unreasonably accessible ESI], the court must also order that the requesting party pay the reasonable expenses of any extraordinary steps required to retrieve and produce the information. ) 30 Balfour Beatty Rail Inc. v. Vaccarello, No. 3:06-cv-551-J-20MCR, 2007 WL at *3 (M.D. Fla., Jan 18, 2007). 31 McCurdy Group LLC v. American Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001) (skepticism and mere desire to check that opposition has been forthright in its discovery responses is not a basis for production of hard drives.) 32 See, e.g., Ameriwood Indus. Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL at *4 (E.D. Mo., Dec. 27, 2006). 33 Id. at *5-6. Journal of The Missouri Bar January-February 2008 Page 16

17 would likely start from the presumption that all relevant, non-privileged information is discoverable, but could impose limitations or conditions, including cost-shifting, under Rule 56.01(c), if discovery of unreasonably accessible ESI is sought. Rule 56.01(c) provides that where discovery rises to a level of undue burden or expense a court can enter a protective order for good cause shown. Missouri recognizes the need for burden-benefit balancing in assessing discovery requests. 34 IV. Th e Di f f e r e n t Op t i o n s To Produce ESI Unlike paper documents, which are created and stored in a form intelligible to people, ESI is created and stored as electronic code and must be converted before people can use the information. This creates another legal issue unique to ESI production: determining the form in which the ESI will be produced. Under new Federal Rule of Civil Procedure 34(b)(i), ESI may be produced in a form in which it is ordinarily maintained, in a reasonably useable form, or in any other form agreed to by the parties. Under Federal Rule of Civil Procedure 34(b)(ii), the requesting party can request a specific form in its production request. The responding party can object and counter-designate a production form or, if no specific form was requested, can designate a form for its production. A party need not produce the same ESI in more than one form. If the parties cannot agree on the appropriate production form, the court may be called on to determine the form in which the ESI will be produced. 35 A. The Different Forms for ESI Production As a general proposition, ESI can be produced in three forms: paper, imaged (quasi-paper), or native forms. Each has unique attributes. 1. Producing ESI in Paper Form ESI is produced in paper form by printing the file, such as s or documents. In many cases printing the relevant s and other ESI is a perfectly satisfactory production method. Paper is a form familiar to all lawyers and it is easy to track by affixing tracking numbers. Paper form, however, is difficult to search for specific terms, difficult to use with litigation management software, burdensome to search and manage when produced in large quantities, and, because it is not in the form the ESI was maintained in the usual course of business, does not contain meta or embedded data. 2. Producing ESI as a Scanned Image ESI is imaged when a picture of the file is scanned onto a CD. Common image forms are *.tif or *.pdf. Imaging has the advantage of mimicking paper production, since tracking numbers can be affixed. Additionally, the image cannot be altered, imaging is compatible with discovery management software, and, for voluminous productions, imaging takes up little space compared to paper. Depending on the imaging method, the images can be automatically searched for specific terms. A drawback to images is that they do not contain meta or embedded data and are usually not the form in which the files were maintained in the usual course of business. 36 A frequent problem with large productions of imaged ESI is linking s to files attached to those s. 3. Producing ESI in its Native Form ESI is produced in native form when the entire electronic file itself is produced. For instance, document files are produced as a *.doc file on a computer disk. The advantage of producing ESI in its native form is that the files are produced as they are maintained in the usual course of business, the files can be searched for specific terms, and the files contain meta and embedded data. Native formatting has several drawbacks. Affixing tracking numbers and redacting privileged information can be difficult. Reviewing meta and embedded data can be costly and time consuming. Native files can be unintentionally altered by the requestor. Last, databases can be used to create exhibits unfamiliar to a witness if information is displayed in an unexpected arrangement. B. The Production of Metadata A recurring issue is the requestor s need for meta or embedded data. Although meta and embedded data are an inherent part of an electronic file, the substance of the file can and often is produced without the metadata. Production of the electronic file with metadata often adds greatly to the time and cost of production. As a general proposition, if a court orders or a party agrees to produce ESI as it is maintained in the ordinary course of business, the ESI should be produced with the metadata intact. 37 The requestor, however, has the burden to demonstrate the relevance and the need for the metadata to justify the burden and cost of production and review. 38 C. How a Missouri Court Might Address Disputes Regarding the Form for Producing ESI Missouri has no rules specifically addressing the form for producing ESI. Rule 58.01(c)(4) is different than the analogous Federal Rule of Civil Procedure 34(b)(i) in that it provides that 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 the request. Although this rule was presumably written with organization of paper documents in mind, it may be the basis to challenge a production form different from the way the ESI was stored in the 34 See, e.g., State ex rel. Blue Cross and Blue Shield of Mo. v. Anderson, 897 S.W.2d 167, 169 (Mo. App. S.D. 1995); State ex rel. Anheuser v. Nolan, 692 S.W.2d 325, 328 (Mo. App. E.D. 1985). 35 See, e.g., Goss Int l Americas Inc. v. Graphic Mgmt Assocs. Inc., No. 05 C 5622, 2007 WL at *3 (N.D. Ill Jan. 11, 2007); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL (N.D. Ill. Mar. 8, 2006). 36 Fe d. R. Civ. P. 26(b)(2)(E)(i). 37 Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kan. 2005) (Waxse, J.) (required production of metadata associated with certain spreadsheets) 38 Williams v. Sprint/United Mgmt Co., Civil Action No JWL-DJW, 2006 WL , at *7 (D. Kan., Dec. 12, 2006) (Waxse, J.) (denied the request for metadata associated with certain s). Journal of The Missouri Bar January-February 2008 Page 17

18 usual course of business. 39 The parties should discuss production forms early and agreement can be addressed in a Rule 56.01(f) stipulation. If not resolved early, the requestor could specify the desired production form in the Rule request for production and the producer could seek a different form by objecting and moving for a protective order directing production on different terms or conditions. C. Evidentiary Admissibility of ESI Although beyond the scope of this article and not affected by the amendments to the federal rules, admissibility of ESI as evidence will present challenges to lawyers and courts. During production, counsel must take proper steps to ensure that ESI is admissible as evidence for summary judgment and at trial. 40 V. Ass e rt i n g Pr i v i l e g e Af t e r Inadvertent Production The potential harm from waiving the attorney-client privilege by inadvertently disclosing privileged ESI and the detailed review effort necessary to avoid waiver add substantial cost and delay to producing ESI. The cost to review a large production can be staggering and take months because certain information does not appear on the face of a document, but only in its embedded data or metadata (e.g., draft language, comments, and deletions). To shorten the review process and reduce cost, new Federal Rule of Civil Procedure 26(b)(5)(B) provides as a default that the producing party may designate material as privileged after it has been produced, and that the disclosure would not constitute a waiver or privilege. The rule does not affect the substantive legal issue of privilege waiver. The changes also acknowledge that the parties may agree between themselves to specific procedures to deal with inadvertent disclosure ( clawback or quickpeek agreements). These agreements may be incorporated into a court order. Despite these rules, a negotiated non-waiver ESI production agreement does not excuse failure to undertake reasonable pre-production privilege review. 41 Moreover, these agreements, even if incorporated into a court order, do not bind third parties. Future amendments to Federal Rule of Evidence 502 may make these agreements binding on third parties and possibly also on state courts. Federal and state courts 42 have adopted one of three general approaches regarding the level of inadvertence necessary for an inadvertent production to constitute a privilege waiver: (1) the lenient approach (only a knowing production is a waiver), (2) the strict approach (any production is a waiver), and (3) the middle-of-the-road approach (undertaking reasonable steps prevents waiver). New Federal Rule of Civil Procedure 26(b)(5)(B) applies the middle of the road approach, which is the approach applied by the Eighth Circuit and, presumably, by Missouri courts. 43 VI. Sa n c t i o n s Fo r Lo s s Or Destruction Of ESI If there is one issue linked in the public s perception to ESI, it is the potential for crippling sanctions. The common law creates a duty for all parties to preserve potential evidence. Breach of this duty, termed spoliation, is punishable by sanctions. Given the automatic destruction and overwriting of ESI and the ease with which operators can alter or delete ESI, it is not surprising that spoliation has become the most vexatious and dangerous aspect of ESI discovery. It is now well-established in the federal courts that counsel has the duty to monitor compliance with the client s preservation efforts so that all sources of discoverable ESI are identified and searched; and, having identified all sources of potentially relevant ESI, a party and its counsel are under a duty to retain that ESI and produce ESI responsive to the opposing party s requests. A. Imposing Sanctions The loss of potentially relevant information can constitute spoliation if three elements are met: (1) a duty to preserve the information existed at the time it was destroyed; (2) a culpable state of mind; and (3) the evidence was relevant to the litigation. A federal court has three sources for its power to sanction breaches of the duty to preserve: Federal Rules of Civil Procedure 26(g), 37(b)(2), and 37(c)(1); 28 U.S.C. 1927; and the court s inherent power. Generally, only a court s inherent power permits sanctions for conduct occurring before the initiation of litigation. The court has various types of sanctions at its disposal, including imposing fines, attorney s fees, or costs; default; dismissal; adverse jury instructions; witness exclusion; and fact establishment. Although not a traditional sanction, a client who uses legal advice to develop or implement a record destruction policy later found to constitute spoliation can lose the protections of the attorney-client privilege under the crimefraud exception. 44 Missouri courts recognize similar sanction options, including adverse evidentiary inferences and cost sanctions under Rules 55.03, 61.01(d), attorney discipline under Rules and 4-3.4, and criminal liability for tampering with physical evidence under , RSMo. 45 B. The Duty to Preserve Potentially Relevant ESI Both state and federal common law impose a duty to preserve relevant information whenever litigation is reasonably foreseeable, which often occurs before a lawsuit is served. The duty equally applies 39 Fe d. R. Civ. P. 26(b)(2)(E)(i). 40 The leading case on ESI admissibility is Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007) (Grimm, J.) (denying cross motions for summary judgment for failure of both parties to present admissible ESI evidence). 41 Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228, 244 n.39 (D. Md. 2005). 42 Gray v. Bicknell, 86 F.3d 1472, (8th Cir. 1996). 43 Id.; State ex rel. Tracy v. Dandurand, 30 S.W.3d 831, 835 (Mo. banc 2000). 44 A.G. Rambus Inc. v. Infineon Techs. A.G., 220 F.R.D. 264, 279 (E.D. Va. 2004). 45 See Pikey v. Bryant, 203 S.W.3d 817, 825 (Mo. App. S.D. 2006). Journal of The Missouri Bar January-February 2008 Page 18

19 to plaintiffs and defendants. Determining precisely when the duty starts and what material it covers are difficult issues and case law has failed to provide consistent benchmarks to guide litigators. Indeed, one company received opposite rulings from two different federal courts that examined the identical behavior When the Duty to Preserve Starts The duty to preserve commences when litigation is likely or probable, not when litigation is merely possible. 47 Although a simple threshold in theory, it has proven difficult to apply in practice. So, while receipt of a demand letter triggers the duty to preserve, 48 receipt of a letter merely addressing a dispute without threatening litigation may not. 49 Informal complaints, however, especially in employment cases, can trigger the duty to preserve evidence. 50 Justifying a failure to preserve evidence by arguing that threats of litigation are a common negotiating tactic is ill-advised. 51 An open question exists as to whether the duty to preserve applies when there is no specific litigation threat, but future litigation in a particular area is probable. Several Eighth Circuit courts have found a duty to preserve if lawsuits or complaints have been filed frequently concerning [the] type of records at issue and questioned the reasonableness of applying routine destruction policies to those records, even in the absence of a specific litigation threat. 52 This concept, however, seems at odds with the Supreme Court s dicta that [u]nder ordinary circumstances, it is not wrongful for a manager to instruct his employees to comply with a valid document retention policy, even though the policy, in part, is created to keep certain information from others, including the government What Must Be Preserved The duty to preserve requires preservation of all information relevant to the potential litigation. This, however, can be a difficult line to draw. Generally, it requires preservation of relevant s, databases, spreadsheets, hard drive data, and data on a server, including all metadata. On the other hand a party need not preserve every shred of paper, every or electronic document, and every backup tape, nor does the preservation obligation require freezing of all electronic documents and data, including Moreover, there is open disagreement on the duty to preserve s contours. Although most courts do not require the preservation of disaster recovery back-up tapes, in some circumstances they do. 55 Once the duty to preserve is triggered, some courts see nothing wrong with moving active data to a back-up storage media, so long as nothing is lost, 56 while other courts find this sanctionable conduct. 57 Additionally, modern information systems have created questions that currently lack judicial guidance for preservation decisions. For instance, how does the duty to preserve apply to information that is only intended for brief temporary storage, such as voice mail? How does the duty to preserve apply to systems that normally do not preserve information but could be reconfigured to do so? How does the When Expertise is Needed Experienced in environments ranging from small to corporate to meet all your computing needs. Forensics and EDiscovery Support Managed Services Security Assessments Penetration Testing One day background and drug checks Office Fax duty to preserve apply to systems, such as dynamic databases, that are designed to reflect only the current information status and which inherently undergo continual changes? Does the duty to preserve require preservation of materials that would not be kept in the ordinary course of business, such as drafts and notes? C. A Culpable State of Mind The most severe sanctions-adverse jury 46 Compare Rambus Inc. v. Infineon Techs. A.G., 220 F.R.D. 264 (E.D. Va. 2004) (destruction unreasonable) with Hynix Semiconductor Inc. v. Rambus Inc., No. C RMW, 2006 WL (N.D. Cal. Jan. 5, 2006) (destruction reasonable). 47 Cache La Poudre, 644 F.R.D. at 621 (litigation is always possible). 48 Oxford House, Inc. v. City of Topeka, Kansas, Slip Copy, 2007 WL , at *3 (D. Kan., Apr. 27, 2007); Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 2006 WL at *3, n.8 (M.D. La. 2006). 49 Cache La Poudre, 644 F.R.D. at Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 513 (D. Md. 2005); Quinby v. WestLB AG, 245 F.R.D. 94, 2006 WL at * 10 (S.D. N.Y 2006) (Quinby II). 51 In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, (N.D. Cal. 2006). 52 E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 589 (D. Minn. 2005); Lewy v. Remington Arms Co., 836 F.2d 1104, 1112 (8th Cir. 1988). 53 Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005). 54 Oxford House, Slip Copy, 2007 WL at *4; Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, (S.D. N.Y. 2003) (Zubulake IV). 55 Keir v. Unumprovident Corp., No. 02 Civ (DLC), 2003 WL at *1 (S.D. N.Y. Aug. 22, 2003). 56 Quinby v. WestLB AG, 245 F.R.D. 94, 2006 WL at *9, nn.12, 13 (S.D. N.Y. 2006) (Quinby II); Quinby v. WestLB AG, No. 04Civ.7406 (WHP)(HBP), 2005 WL , at *8 n.10 (S.D. N.Y., Dec. 15, 2005) (Quinby I). 57 Treppel v. Biovail Corp., 233 F.R.D. 363, 372 and n.4 (S.D. N.Y. 2006). 58 Compare Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (sanctions require bad faith ) with In re NTL, Inc. Securities Litigation, 244 F.R.D. 179 at *20 (S.D. N.Y. 2007) (only negligence). 59 Baldridge v. Dir. of Revenue, State of Mo., 82 S.W.3d 212, 223 (Mo. App. W.D. 2002). Journal of The Missouri Bar January-February 2008 Page 19

20 instructions, default, or dismissal are usually imposed only for intentional, bad faith, or grossly negligent acts. Intentional bad faith destruction of relevant information always warrants the most severe sanctions. Almost as blameworthy is the willful indifference or reckless disregard of the duty to preserve that leads to the loss of information. Negligent conduct that leads to the loss of information, usually due to ineffective preservation efforts, usually receives less severe sanctions. Some federal circuits, however, permit harsh sanctions for merely negligent conduct. 58 Before imposing sanctions for spoliation, Missouri courts require evidence of intentional destruction indicating fraud, bad faith, and a desire to suppress the truth. 59 D. Federal Rule 37 s Safe Harbor From Spoliation Sanctions Federal Rule of Civil Procedure 37(e) adopted a partial safe harbor from discovery sanctions: Absent exceptional circumstances, a court may not impose sanctions under these rules for failing to produce [ESI] lost as a result of the routine, good-faith operation of an electronic information system. This rule did not alter state law governing preservation of evidence or spoliation. Three phrases limit the rule s protections. 1. Routine... Operation A routine operation includes recycling of back-up tapes kept only for brief periods; automatic overwriting of information that has been deleted; programs that change metadata to reflect the latest access to particular information; and programs that automatically delete information not accessed within a defined period or that exceeds a certain age. 2. Good Faith Operation Good faith implicates the level of effort to preserve potentially relevant information and requires interrupting routine destruction operations when the duty to preserve triggers. 3. Under These Rules The safe harbor applies only to sanctions for loss after the initiation of litigation because the rules only apply once litigation commences. The safe harbor does not apply to sanctions brought under the court s inherent power or under 28 U.S.C D. How to Protect Your Client from Spoliation Sanctions 1. Create Your Own Safe Harbor The easiest way to avoid sanctions is for the parties to create their own safe harbors by agreeing to specific preservation obligations and discovery protocols. This sets expectations and avoids costly disputes. The parties should reduce these agreements to formal preservation orders entered by the court. 2. Create and Enforce a Valid Record Retention / Destruction Program An effective way to minimize the risk of sanctions is to have and consistently enforce a valid record retention policy. These policies identify what information needs to be retained as a record and for how long, and authorize destruction of all other information. Courts respect the need to manage information storage and to purge information that no longer serves a business purpose. The most common approach is age-based purge rules, especially for s. Under these rules, all over a certain number of days old is automatically eliminated unless the operator takes affirmative action to preserve the Implement a Litigation Hold Once a party believes that litigation is likely, it must issue what has come to be known as a litigation hold. A litigation hold s purpose is to ensure preservation of all relevant information and requires the immediate suspension of any automatic purging of potentially relevant ESI. A documented, reasonable, and good faith preservation effort can provide protection from spoliation sanctions in the event of unintentional ESI destruction. A litigation hold is usually an official directive sent to all individuals who may possess or control relevant information. Both fact witnesses and the computer department must be put on notice to preserve relevant information. The litigation hold should be hand-delivered, if possible, to ensure the recipients understand its importance. It should describe the types of information that must be preserved, contain clear instructions of how to preserve the different types of information, e.g., what to do with s, electronic documents, paper documents, or voice mails, and it should require each recipient to reply and identify the information found and what was done with it. Additionally, follow-ups and reminders must be sent periodically, especially if relevant information continues to be created. VI. Co n c l u s i o n ESI discovery presents many unique issues for lawyers and courts. These issues cost, time, production, privilege, spoliation, and preservation are not unique to ESI, but ESI presents unique problems. As courts and lawyers address these issues, the existing procedural rules must be applied flexibly to obtain a prompt, inexpensive resolution based on the merits, not one driven by excessive cost or burden. Moreover, the changes regarding ESI create new duties for all counsel, both outside and in-house. Counsel must also become fully versed in both the basics of the technology and with developing legal standards. Journal of The Missouri Bar January-February 2008 Page 20

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