ediscovery Advantage INTRODUCTION

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1 Winter 2014 Volume 4 Number 1 INTRODUCTION Since the last edition of ediscovery Advantage, there have been a number of developments in the ediscovery industry, including: The Advisory Committee has now conducted three public hearings and received over 2200 written comments on the proposed amendments to the Federal Rules of Civil Procedure. A number of decisions imposing significant sanctions for a party s failure to adequately preserve relevant evidence. Decisions addressing Federal Rule of Evidence 502, Federal Rule of Civil Procedure 26, and the inadvertent production of privileged documents. Decisions regarding the discoverability of social media content, cost recovery and cost shifting, and the scope of preservation. Significant ethical opinions from state bars regarding both attorney competence concerning e-discovery and conducting social media investigations. The European Union has drawn into question the continued viability of the US-EU Safe Harbor Program in light of the revelations concerning the NSA surveillance programs. The implementation of the Malaysian and Manitoban Data Privacy Regulations. Notably, the recent decision from the Southern District of Illinois in In re Pradaxa makes clear that the failure to preserve relevant information and a party s unilateral decisions to limit the scope of preservation can carry severe consequences. The decision highlights the need for a comprehensive, reasonable, and defensible legal hold strategy, including, among other things, discussing the legal hold with the opposing side and requesting that the court approve phased approaches to the implementation of both the legal hold and the overall discovery process. We hope that the following summaries and information continue to aid your understanding of this important and rapidly evolving area of the law, and we look forward to helping you stay abreast of upcoming e-discovery developments. Table of Contents Introduction...1 Featured Decision... 2 Amendments To Federal Rules Of Civil Procedure.3 Winston & Strawn Releases Case Study On Predictive Coding...4 International Cross Border Issues...6 Sanctions... 7 Privilege and Waiver Issues...13 Search, Retrieval and Production...15 Meet and Confer Obligations Preservation...19 Social Media...21 Stored Communications Act...22 International Privacy...23 Recovery Of E-Discovery Costs/Cost Shifting...25 Recent Speaking Events...27 Past Publications and Events...27 Featured Contributors...27 Contact Us...27

2 [A] number of the discovery violations are tied to the defendants duty to preserve evidence relevant to this litigation and the gross inadequacy of the litigation hold that has been adopted by the defendants to date. FEATURED DECISION The best course of action for parties wishing to limit the scope of preservation is to seek the agreement of opposing counsel, and failing that, to move the court for a protective order or for a phased approach to preservation and/or discovery. A recent decision out of the Southern District of Illinois demonstrates that a party s unilateral attempts to limit preservation can carry a high price. In In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., 2013 WL (S.D. Ill. Dec. 9, 2013), Chief Judge David R. Herndon granted the plaintiffs motion for sanctions in connection with the defendants failure to preserve certain evidence. The plaintiffs sought sanctions after it became clear that the defendants failed to preserve, among other things: (1) the custodial file of a scientist intricately involved with drug at issue; (2) evidence relating to (and/or the untimely disclosure of) defendants sales representatives; (3) production issues surrounding one of the defendants shared network drives; and (4) text messages on certain employees cell phones. Chief Judge Herndon found that a number of the discovery violations are tied to the defendants duty to preserve evidence relevant to this litigation and the gross inadequacy of the litigation hold that has been adopted by the defendants to date. He found that the defendants have taken too narrow and an incremental approach to its company-wide litigation hold. Although Chief Judge Herndon did not take umbrage with the language or the scope of the hold at issue, he believed the problems arose because, among other things, the defendants unilaterally chose to incrementally place holds on certain classes of employees, chose not to put a certain employee on hold because the company decided he didn t fit the description of important enough, and failed to provide its vendor password access to part of a shared drive that contained relevant information. Importantly, Chief Judge Herndon highlighted that the defendants never sought leave of Court to delay implementation of the litigation hold on the premise that it was too burdensome financially or logistically. The court also found the defendant s proffered explanations for its failure to preserve the custodial file of the key scientist problematic. To the extent that the defendants claimed that they did not realize that the scientist possessed relevant information and thus did not preserve relevant information when he left the defendants employ, the court noted that, among other things, the scientist co-authored at least 10 articles on the drug at issue and that there were internal company s reflecting a debate over whether a scientific paper should include the scientist s conclusions. Regarding the defendants claim that the proportionality requirement contained in Rule 26 of the Rules of Civil Procedure allowed them to implement an extremely narrow litigation hold, Chief Judge Herndon held that there is nothing in any case management order nor can defendants 2 return to top

3 point to any statement of the Court that can be interpreted as suggesting such a tailored litigation hold was acceptable. He also noted that the defendants did not obtain a protective order from the Court tailoring the litigation hold or setting specific landmarks when the litigation hold would kick in. Regarding the failure to timely identify and preserve relevant text messages, Chief Judge Herndon held both that the duty to preserve is not a passive obligation: it must be discharged actively, and that the defendants had a duty to ensure that their employees understood that text messages were included in the litigation hold. If the defendants wanted to avoid having to preserve the text messages, Chief Judge Herndon noted that they should have filed the appropriate motions with the Court. The defendants cannot simply make a unilateral decision regarding the burden of a particular discovery request and then allow the information that is the subject of the discovery request to be destroyed. Ultimately, Chief Judge Herndon found the defendants actions and omissions to be in bad faith, and imposed monetary fines of $500/ case, for a total of $931,500. He also required the defendants to: (1) produce all witnesses for deposition in the United States regardless of the witnesses country of residence; and (2) reimburse the plaintiffs fees and costs in pursuing the defendants violations. He reserved judgment on the imposition of other sanctions until the defendants either produced the requested information or certified that the information had been destroyed. AMENDMENTS TO FEDERAL RULES OF CIVIL PROCEDURE The effort to amend the Federal Rules of Civil Procedure has now reached the next phase. A draft set of amendments was reported out by the Federal Rules Advisory Committee for public comment in August of 2013, and the Advisory Committee has held hearings in Washington, D.C., Phoenix, Arizona and Dallas, Texas on the proposed amendments. The public comment period closed on February 17, 2014, and the Advisory Committee received over 2,200 written comments from law firms, corporations, non-profit groups and government agencies. Copies of the various submissions are available here. The proposed amendments to the Federal Rules are intended to address the burgeoning costs of e-discovery, particularly their impact on corporations. The key components to the proposed amendments include a change to the scope of discovery under Rule 26(b)(1) from relevant to the subject matter involved in the action to is relevant to a party s claim or defense, and removal of the language that states [r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The proposed rule would also move proportionality expressly into the scope of discovery under Rule 26. In addition, the proposed rule would completely replace the existing Rule 37(e) with a new sanctions rule designed to create a uniform national standard based upon culpability and prejudice. This new standard rejects 3 return to top

4 the approach promulgated by some courts, which imposes tort-based negligence and gross negligence standards in the context of sanctions determinations. The proposed amendments also contain changes to presumptive limits for depositions (from 10 to 5), interrogatories (from 25 to 15) and requests for admissions (25). The hearings and comments to the proposed amendments have reflected a split between plaintiffand defense-oriented organizations. Not surprisingly, the plaintiffs bar has almost uniformly opposed the entire package of amendments, largely on the ideological ground that the proposed amendments will limit many litigants access to the federal courts. The defense bar has largely endorsed most of the amendments as necessary changes that help stem the rising costs and burdens of the ever-expanding volume of ESI maintained by corporations. The Department of Justice and The Sedona Conference s Working Group 1 have largely endorsed most aspects of the proposed rules package. See Comment from Winston & Strawn s John Rosenthal, available here. In terms of next steps, the Advisory Committee will now consider the testimony and submissions it received during the public comment period and report out any changes to proposed amendments to the Standing Committee by this coming April. The Standing Committee will then make its report and recommendation on the proposed amendments to the Judicial Conference, and ultimately the U.S. Supreme Court. WINSTON & STRAWN RELEASES CASE STUDY ON PREDICTIVE CODING On February 6, 2014, Winston & Strawn released the results of a case study it conducted for one of its clients on the use of Technology Assisted Review (also known as TAR or predictive coding ). As explained in greater detail in the case study, Winston & Strawn used the Equivio>Relevance platform to conduct predictive coding against a corpus of 300,000 documents that had previously been reviewed by human reviewers in a completed case. The results of this study (available here) affirm that under the appropriate circumstances, and with the right people and processes, the use of TAR can significantly reduce the overall time and costs associated with the review of ESI. Given the number of vendors offering predictive coding solutions, there understandably is a lot of confusion over how corporations and law firms can conduct TAR in a defensible and reasonable manner. Generally, TAR involves: (1) manually reviewing a small percentage of the data (the seed set) to identify buckets of relevant versus non-relevant information; (2) training the system through an iterative process of feeding small sets of documents into a black box or brain (composed of complex mathematical algorithms) until the system reaches a stable level of precision and recall; (3) allowing the brain to predict or extrapolate the relevancy decisions across the remaining data set; and (4) using random sampling to verify the accuracy of these relevancy determinations across the remaining data set. 4 return to top

5 Following the workflow set forth in the case study, Winston & Strawn was able to use Equivio>Relevance to achieve a significantly higher recall percentage (the ratio of the number of relevant documents found to the total number of relevant documents) than the human reviewers while cutting the overall length of time needed to complete the review by more than 60 percent. MASSACHUSETTS BOARD OF BAR OVERSEERS REPRIMANDS ATTORNEY FOR LACK OF E-DISCOVERY COMPETENCE In a decision that emphasizes the need for lawyers to become aware of both their own and their clients e-discovery obligations, the Massachusetts Board of Bar Overseers for the Office of Bar Counsel publicly reprimanded a practitioner for, among other things, handling a matter that he was not competent to handle without adequate research or associating with or conferring with experienced counsel. In the case at issue, the lawyer s client had taken a computer belonging to his former employer with him when he began working for his current employer. Prior to returning the computer to his former employer, the client had transferred files to another computer and had used a scrubbing program to delete all files from the laptop in question. Shortly thereafter, the Superior Court of Massachusetts issued a temporary restraining order barring the client from disposing of or using trade secrets of his former employer. While the Board of Overseers did not fault the lawyer for actions his client took without the lawyer s knowledge, it did note that the lawyer s advice that it was permissible to scrub certain files from the hard drive in contravention of a court order constituted unlawful obstruction of another party s access to evidence[.] Although the client represented that the deleted files were confidential files from his new employer and did not relate to his former employer, the Board of Overseers found that lawyer failed: (1) to consult with experienced counsel; (2) to research what the client s preservation obligations were; or (3) to attempt to determine whether the deleted files were in fact only related to the client s current employer. The Board of Bar Overseers cited to the lawyer s failure to adequately communicate to his client his obligations under the court order and the potential prejudice inherent in using the scrubbing software to alter the contents of the hard drive. Given the specifics of the case, the Board of Overseers publicly reprimanded the lawyer and required that he attend two CLE programs, one on e-discovery and the other on ethics and law office management. Editor s Note: It is incumbent upon all practicing litigators to understand the e-discovery obligations imposed upon both lawyers and clients and to advise clients accordingly. Should you find yourself in a position where those obligations are not clear, please do not hesitate to reach out to individuals who specialize in this area. 5 return to top

6 INTERNATIONAL CROSS BORDER ISSUES The international community has become increasingly concerned with the security of data that is transferred to the United States, which in turn has led some to question whether the EU-US Safe Harbor Program provides adequate protection to the privacy rights of EU citizens. European Commission to the European Parliament Issues Communication on the US-EU Safe Harbor Program The revelations concerning the scope of U.S.-government surveillance and information gathering activities have engendered impassioned responses from the international community, and have caused members of the European Union to question the continued validity of the US-EU Safe Harbor program. In response to these concerns, on November 27, 2013, the European Commission issued a Communication From the Commission to the European Parliament and the Council on the Functioning of the Safe Harbor from the Perspective of EU Citizens and Companies Established in the EU (the EC Communication ). A copy of the EC Communication is available here. The EC Communication reviews the establishment of the Safe Harbor program, its provisions, and its implementation over time. It notes that there are currently more than 3,246 safe-harbor certified companies, both large and small, including many well known Internet companies. It then notes that [t]here has been growing concern among some data protection authorities in the EU about data transfers under the current Safe Harbor scheme. The Commission found that the divergent responses of data protection authorities to the surveillance revelations demonstrate the real risk of the fragmentation of the Safe Harbor Scheme and raise questions as to the extent to which it is enforced. After reviewing, inter alia, the manner in which companies become Safe- Harbor certified, what information they need to provide to data subjects, the role the FTC plays in enforcement of the program and the national security exception available to national governments, the Commission identifies a list of recommendations for strengthening the operation of the Safe-Harbor program. Specifically, the Commission makes the following recommendations: (1) requiring Safe- Harbor certified companies to disclose their privacy policies publicly and to provide a link to both the Department of Commerce website that lists all current members of the Safe Harbor program and to available alternative dispute resolution ( ADR ) channels; (2) requiring those same companies to publish the privacy provisions of any contracts with subcontractors; (3) making ADR readily available and affordable; (4) increased monitoring by the Department of Commerce of compliance with Safe Harbor requirements by entities claiming Safe Harbor Certification; (5) requiring privacy policies to disclose the extent to which U.S. law allows authorities to collect and process information transferred under the Safe Harbor; and (6) limiting the use of the national security exception to only those instances where access to such information is strictly necessary or proportionate. 6 return to top

7 Despite the issuance of the EC Communication, this issue is far from being resolved. On January 8, 2014, the European Parliament s Committee on Civil Liberties, Justice and Home Affairs issued a Draft Report on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens fundamental rights and on transatlantic cooperation in Justice and Home Affairs (the Draft Report ). A copy of the Draft Report is available here. Among other things, the Draft Report calls upon the Commission to present measures providing for the immediate suspension of Commission Decision 550/2000, and requests data that protection authorities immediately suspend data flows to any organisation that has self-certified under the Safe Harbor Program and require that they instead be completed under an alternative regime, e.g., contractual clauses or binding corporate rules. Editors Note: We will continue to monitor efforts to reform or repeal the Safe Harbor program, because any such actions will have an enormous impact on the flow of information between the U.S. and the EU. SANCTIONS Courts continue to address when it is appropriate to sanction parties for their failure to adequately preserve relevant ESI and what are the appropriate sanctions to impose. For example, in In re Actos (Pioglitazone) Prods. Liab. Litig., 2014 WL (W.D. La. Jan. 30, 2014), Judge Rebecca F. Doherty granted in part the plaintiff s motion for sanctions based on the defendants failure to preserve ESI. After noting that the defendants had admitted that a total of 46 custodial files that cannot be located or have not been produced, Judge Doherty addressed whether the defendants had a duty to preserve the ESI in question. In so doing, she noted that the defendants had issued a broad litigation hold back in 2002, over nine years before the time when defendants asserted that they reasonably anticipated litigation in this matter. Defendants argued that in 2002, despite being aware of claims for personal injury and death allegedly caused by their drug, Actos, they did not anticipate claims that Actos caused bladder cancer. The defendants asserted that they did not reasonably anticipate bladder cancer claims until 2011, and thus the duty to preserve did not attach until then. Judge Doherty was not persuaded by this argument, as she found that the 2002 litigation hold was sweeping in its scope and breadth and contain[ed] no such limitation to or identification of a particular malady[.] She also noted that the 2002 hold has never been lifted, and indeed, according to [the defendant] has been refreshed at least five times, the most recent of which took place on February 15, Accordingly, Judge Doherty concluded that the defendants either knew or should have known, litigation involving Actos was either anticipated or reasonably foreseeable when the 2002 Litigation Hold was implemented in July In determining what sanction to impose, Judge Doherty noted that courts in the Fifth Circuit must not impose severe sanctions, such as NY: return to top

8 default judgment or adverse inference instructions, unless there is evidence of bad faith. Because the plaintiffs had requested an adverse inference instruction, Judge Doherty then considered whether: (1) the ESI in question was destroyed with a culpable state of mind; (2) the ESI in question would have supported the inference sought; and (3) the plaintiffs were prejudiced by the destruction of the ESI in question. Judge Doherty noted that the plaintiff was able to show from evidence obtained from third parties, and certain of the defendants other custodians, that the missing information was relevant to the plaintiffs claims and that the plaintiffs had been prejudiced as a result of its destruction. On the question of whether the defendants acted in bad faith, Judge Doherty noted that district courts have permitted parties to put on evidence about alleged spoliation and let the jury punish [parties] accordingly. Although Judge Doherty noted that the plaintiffs made a strong and persuasive showing from the evidence of a culpable state of mind, regarding the defendants destruction of evidence, she declined to rule on whether the defendants acted in bad faith. Instead, Judge Doherty decided to allow all evidence of bad faith to go to the jury, after which she stated that she would determine what specific charge will be given to the jury as to what inferences, if any, they might employ. She also deferred any ruling on whether to impose additional sanctions until after the close of evidence. In contrast to Judge Doherty s decision in In re Actos, in AMC Technology, LLC v. Cisco Systems, Inc., 2103 WL (N.D. Cal. July 15, 2013), Magistrate Judge Paul S. Grewal denied a motion for sanctions against the defendant arising out of the deletion of a former employee s archive and information on his laptop computer. Magistrate Judge Grewal noted that four days before the plaintiff filed suit, the employee in question retired from the defendant, and then after 30 days, in accordance with the defendant s standard protocol, the defendant reformatted the employee s laptop and deleted his archives. Although Magistrate Judge Grewal found that the defendant was under a general duty to preserve relevant information at the time the employee s information was deleted, he noted that at the time the employee s files were deleted he was an unlikely candidate to have documents relevant to the Agreement, because he had not been engaged in negotiations of the agreement in dispute and had not been on any of the defendant s relevant internal committees. Accordingly, Judge Grewal found that the defendant could not have reasonably known at that time that the former employee s documents would be relevant to the litigation and therefore found that there was no duty to preserve those documents at that time. Judge Grewal also found that the defendant lacked the requisite culpable state of mind to warrant sanctions because the disposal of the former employee s information was done pursuant to the defendant s 8 return to top

9 the defendant lacked the culpable state of mind to warrant sanctions because the disposal of the former employee s information was done pursuant to the defendant s routine procedure for departing employees. routine procedure for departing employees. He further found that to the extent any information the former employee likely possessed was relevant to the claims or defenses in the lawsuit, it did not appear that such information would have been unique to the former employee. Accordingly, Judge Grewal noted that he was hard-pressed to find that [the plaintiff] was prejudiced by the loss of the former employee s data. One of the more popular questions facing courts is whether to impose an adverse inference where a party has spoliated evidence. In Swift Transportation Co. of Arizona LLC v. Angulo, 716 F.3d 1127 (8th Cir. 2013), the Eighth Circuit upheld the trial court s imposition of an adverse inference due to the plaintiff s failure to preserve information relevant to an earlier personal injury proceeding. After the plaintiff was found liable, it sued its attorneys for malpractice in federal court, and then appealed the dismissal of its malpractice claims. The Eighth Circuit rejected the plaintiff s argument that the Arkansas appellate courts would have reversed the finding of liability, especially given the testimony of one of the plaintiff s employees that called the plaintiff s veracity into question. The Eighth Circuit also noted that the trial court did not abuse its discretion in imposing an adverse inference instruction because it found that the plaintiff had acted in bad faith, and the injured party was prejudiced because he could not review the underlying data and question the plaintiff s conclusions. In contrast, in Herrmann v. Rain Link, Inc., 2013 WL (D. Kan. Aug. 7, 2013), Judge Richard Rogers upheld the denial of the plaintiff s request for an adverse inference instruction, attorneys fees, and additional monetary sanctions. Although the plaintiff argued that the court could presume prejudice if spoliation was intentional, Magistrate Judge Gary Sebelius noted the plaintiff s argument was based on the Zubulake line of cases from the Southern District of New York and that the Tenth Circuit has issued opinions that make clear that it is necessary to demonstrate prejudice. Accordingly, the moving party has the burden to demonstrate actual prejudice rather than theoretical prejudice, which requires some showing that the destroyed evidence would have been relevant to the claims or defenses in the case. Magistrate Judge Sebelius further noted that it is not enough to speculate that the moving party is prejudiced because the evidence no longer exists, because this is true in any case involving spoliation of evidence. The plaintiff claimed that the defendant had spoliated evidence when, among other things, it failed to: (1) preserve native versions of s that were produced in hard-copy form; (2) produce drafts of meeting minutes; and (3) produce the native version of a memorandum regarding a conversation between counsel concerning the plaintiff s termination. Magistrate Judge Sebelius found that the plaintiff did not specify how he was prejudiced by the failure to retain the native s, other than to speculate that the defendant must 9 return to top

10 the imposition of a permissive adverse inference did not constitute a punitive sanction. have deleted other s. In addition, the court noted that the plaintiff could not demonstrate any prejudice with respect to the meeting minutes because the defendant s counsel already had admitted to creating the minutes after the meetings at issue had already taken place. Finally, although Magistrate Judge Sebelius found the defendant s failure to preserve the memorandum of the conversation between counsel a close call as to prejudice, he noted that the problem with the defendant s argument was that he was calling defendant s counsel s veracity into question without offering any evidence suggesting that defense counsel would make misrepresentations to this court and produce a fraudulent document. Without a showing of prejudice or bad faith, Magistrate Judge Sebelius held that even though the defendant was negligent, this was not sufficient to warrant an adverse inference jury instruction. Other courts have taken the position that the use of a permissive adverse inference instruction does not constitute a sanction, but rather simply provides the jury guidance on what inference it can draw if it finds a party s actions resulted in the spoliation of evidence. For example, in Mali v. Federal Ins. Co., 720 F.3d 387 (2d Cir. 2013) the Second Circuit recently held that the imposition of a permissive adverse inference did not constitute a punitive sanction. In Mali, the plaintiffs sought to recover under an insurance policy after the plaintiffs residence was destroyed by a fire. After the defendant requested that the plaintiffs produce photographs of the interior of the residence in order to substantiate their claims, the plaintiffs claimed that they did not possess any such photographs. Testimony adduced at trial, however, suggested that such photographs had existed at an earlier time. The defendants then requested that the court issue a mandatory adverse inference instruction as a sanction for the plaintiff s failure to preserve the requested photographs. The trial court denied the defendants request for a mandatory adverse inference instruction. Instead, the court issued a permissive adverse inference instruction, which allowed but did not require the jury to find that a photo existed, that it was not produced, and that it would have been unfavorable to the plaintiffs. The Second Circuit upheld the trial court s use of the permissive adverse inference instruction, noting that imposition of a mandatory adverse inference instruction constitutes a sanction for which the court must have made the requisite factual finding. In contrast, the Second Circuit stated that a permissive adverse inference instruction is one that simply explains to the jury, as an example of the reasoning process in the law known as circumstantial evidence, that a jury s finding of certain facts may (but need not) support a further finding that other facts are true. Editor s Note: The attempt to construe a permissive jury instruction as merely a curative measure is an example of the disparate application of sanctions due to the lack of a national uniform standard. We believe this approach 10 return to top

11 is a minority view and does not reflect the reality that spoliation instructions of this nature are punitive in nature and should be treated under the sanctions rule. Courts take a dim view of a party s unilateral attempt to limit the scope of discovery, particularly in light of Rule 26 of the Federal Rules of Civil Procedure, which requires that parties meet and confer about the location and preservation of relevant ESI. In Stream Companies v. Windward Advertising, 2013 WL (E.D.Pa. July 17, 2013), Magistrate Judge Lynne A. Sitarski granted the plaintiff s motion for monetary sanctions after the defendants intentionally deleted s and refused to comply with the court s order to produce certain electronic devices for forensic imaging. Magistrate Judge Sitarski found that the defendants intentionally deleted the s despite being subject to a court order in connection with a preliminary injunction requiring them to preserve all evidence relevant to the Complaint. She also chastised the defendants for their unilateral decision to limit their production of electronic devices for imaging and to exclude several devices in blatant disregard of the spirit and plain text of the court s order. In granting the motion, Magistrate Judge Sitarski noted that the party claiming spoliation has to demonstrate that: (1) the evidence was in the non-moving party s control; (2) the evidence is relevant to the claims or defenses in the case; (3) there was actual suppression or withholding of evidence; and (4) the duty to preserve evidence was reasonably foreseeable. The court determined that: (i) the disputed ESI was within the defendants control; (ii) the disputed ESI was relevant to the question of what information the defendants downloaded and how the information was used; and (iii) the duty to preserve was reasonably foreseeable. In examining whether the defendants had actually suppressed or withheld evidence, Magistrate Judge Sitarski held that she could conclude that only the s were actually suppressed. She declined to find at such an early stage before the Rule 16 conference and subsequent discovery that the defendants explanations for the loss of certain other data sources constituted actual suppression. Although the proposed amendments to the Federal Rules of Civil Procedure have received significant attention, especially regarding their approach to sanctions under Rule 37, some courts have been reluctant to follow that approach prior to the final approval and implementation of the amendments. For example, in Barrette Outdoor Living, Inc. v. Lemanski, 2013 WL (E.D. Mich. Aug. 1, 2013), Judge Julian Abele Cook, Jr. upheld the magistrate judge s report and recommendation granting in part the plaintiff s motions for sanctions. In doing so, Judge Cook rejected the defendant s argument that the limits on the imposition of sanctions contained in the proposed amendments to the Federal Rules of Civil Procedure should be considered in deciding whether to impose a mandatory adverse inference instruction. 11 return to top

12 ...terminating sanctions under Rule 37 must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction... Although Judge Cook noted that while these [proposed] changes may have merit, they are not currently the legal standard. He therefore held that although the imposition of an adverse inference instruction was a harsh sanction, it is warranted in light of [the defendant s] violation of this Court s prior order. Judge Cook declined to issue a permissive adverse inference, and instead found that because the defendant s spoliation was substantial, intentional, in bad faith and occurred during active litigation... the adverse inference must be irrefutable. Although courts remain hesitant to impose terminating sanctions, given their drastic nature, litigants that fail to take a court s discovery orders and admonishments seriously run the risk of having their claims dismissed. In Moore v. CITGO Ref. & Chems. Co., 735 F.3d 309 (5th Cir. 2013), for example, the Fifth Circuit upheld the trial court s dismissal of 21 plaintiffs Fair Labor Standards Act claims due to those plaintiffs failure to preserve certain relevant handwritten notes and personal s. In affirming the trial court s order, the Fifth Circuit found that terminating sanctions under Rule 37 must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. The Fifth Circuit held that in order to support the imposition of terminating sanctions, the district court had to find that: (1) the plaintiffs refusal to comply results from willfulness or bad faith; (2) the violation of the discovery order in question was the fault of the client and not an attorney; (3) the conduct substantially prejudiced the opposing party; and (4) a less drastic sanction would not substantially achieve the same result. The Fifth Circuit found that it was not clear error for the trial court to find that the notes that the plaintiffs routinely destroyed or failed to preserve would have been the best evidence of [the plaintiffs ] daily tasks. Moreover, the Fifth Circuit also noted that it has rejected the view that a court is required to attempt to coax [parties] into compliance with its order by imposing incrementally increasing sanctions. In contrast to the drastic result in Moore, in Health Grades, Inc. v. MDX Med., Inc., 2014 WL (D. Colo. Jan 3, 2014), Magistrate Judge Boyd N. Boland declined to impose merits-determinative sanctions. There, the plaintiff sought sanctions for the defendant s production of an incorrect and incomplete answer to an interrogatory. The defendant opposed the request, claiming that in order to obtain the information necessary to respond to the interrogatory it would have had to create documents that did not already exist. Although Magistrate Judge Boland recognized that under Rule 34 of the Federal Rules of Civil Procedure, there is no obligation to create documents that do not otherwise exist, he noted that a party cannot meet its discovery obligations by sticking its head in the sand and refusing to look for answers and then saying it does not know the answer. He also found that a party cannot refuse to provide a full answer 12 return to top

13 to an interrogatory simply because it does not maintain the data in the format requested. Magistrate Judge Boland declined to impose merits-determinative sanctions because he found that lesser sanctions, including the award of attorneys fees, was sufficient to cure any prejudice to the plaintiff and to assure that the defendant would comply with its pretrial obligations. Notably, Magistrate Judge Boland imposed monetary sanctions against the defendant s counsel, and not the defendant, because the interrogatory answer at issue was not reviewed, approved, or signed by the defendant, and because the defendant s counsel had a duty under Rule 26(g) to assure the propriety of the interrogatory answer after reasonable inquiry, which duty it failed to satisfy. PRIVILEGE AND WAIVER ISSUES Courts continue to address the contours of the attorney-client privilege as it relates to ESI, including whether the attorney-client privilege extends to information contained in electronic databases. In Chen-Oster v. Goldman Sachs & Co., 293 F.R.D. 547 (S.D.N.Y. June 18, 2013), for example, Magistrate Judge James C. Francis IV held that the attorney-client privilege can extend to information contained in a database under appropriate circumstances, even where the underlying facts themselves may not be privileged. There, the defendant asserted that certain fields in a database were created at the behest of counsel, and that the data contained in those fields would then be reviewed by lawyers. The plaintiff challenged the defendant s privilege claim on the grounds that: (1) the data did not constitute a communication ; and (2) the information contained in the database fields constitute facts that cannot be protected by the attorneyclient privilege. Magistrate Judge Francis rejected each of the plaintiffs arguments. In doing so, he noted that communication is defined as a process by which information is exchanged between individuals through a common system of symbols, signs or behavior. Magistrate Judge Francis held that even the names of the categories constituted communications because they are the organizational principles, dictated by counsel, that the client uses to sort and package the information provided to attorneys. He also found that the data contained in the fields was privileged even though the underlying facts were not. The fact that the underlying data, attributes of certain of the defendants employees, had been produced previously in a separate non-privileged database supported maintaining the privilege in this instance. In addition to being asked to determine the specific types of information that can be covered by the attorney-client privilege, courts continue to address whether the unintended disclosure of privileged information results in a waiver of the attorney-client privilege. In Woodard v. Victory Records, Inc., (N.D. Ill. Aug. 22, 2013), Magistrate Judge Young B. Kim addressed the interplay between Rule 13 return to top

14 Rule 26(b)(5) (B) operates independently of Rule 502 and it is to be followed regardless of the applicability of other evidentiary rules. 26(b)(5)(B) of the Federal Rules of Civil Procedure and Rule 502(b) of the Federal Rules of Evidence. Magistrate Judge Kim noted that Rule 26(b)(5) (B) permits parties to flag documents inadvertently produced during discovery that they believe are subject to privilege, and prohibits receiving parties from using the documents until the privilege claim is resolved. Rule 502(b) addresses whether the inadvertent production of privileged documents operates as a waiver of the privilege. Magistrate Judge Kim explained that Rule 26(b)(5)(B) operates independently of Rule 502 and it is to be followed regardless of the applicability of other evidentiary rules. At issue was the fact that the plaintiffs had inadvertently produced documents that they claimed were protected by both the attorneyclient privilege and the work product doctrine. Shortly after the inadvertent production, the plaintiffs counsel sent a letter requesting that the documents be clawed back pursuant to Rule 26(b)(5)(B). The defendant sequestered the documents for over a year but never sought a determination from the court that the documents were not privileged. Subsequently, the defendant attempted to use certain of the inadvertently-produced documents at a deposition. Magistrate Judge Kim found that because the plaintiff had provided the requisite written notice under Rule 26(b)(5)(B), the burden shifted to the defendants to decide whether to challenge the claim. After noting that the defendants never challenged the privileged status of the documents under Rule 26(b)(5)(B), Magistrate Judge Kim held that any decision under Rule 502(b) concerning whether the plaintiffs had produced the documents inadvertently was premature and had to await a challenge to the asserted privilege under Rule 26(b)(5)(B). Accordingly, the court required that the defendants sequester the inadvertently-produced documents until such time they were deemed not privileged or no longer privileged and take reasonable steps to recover the documents if they had disclosed them to others. Similarly, in SurfCast, Inc. v. Microsoft Corporation, 2013 WL (D. Maine Aug. 7, 2013), Magistrate Judge John H. Rich addressed whether the inadvertent production of a particular document waived the attorneyclient privilege. There, the plaintiff had produced a hard copy version of an that did not reflect all recipients, including an attorney for the plaintiff. The plaintiff s counsel claimed that he first learned that one of the omitted recipients was one of the plaintiff s attorneys three days after the document had been used in a deposition. The plaintiff s counsel then promptly sent a clawback letter to the defendant, asserting that the document had been inadvertently produced and was protected by the attorney-client privilege. In analyzing the waiver issue, Magistrate Judge Rich found that the document was privileged and that it was difficult to conclude that the production was anything but inadvertent. He also noted that the confidentiality order appears to take this element [i.e., inadvertence] out of the waiver calculus. 14 return to top

15 Despite these factors, Magistrate Judge Rich ultimately concluded that the failure of the plaintiff s counsel to object to the use of the document at the deposition waived the privilege. In doing so, Magistrate Judge Rich rejected the plaintiff s argument that it did not know that the document was privileged because the hard-copy version did not include the name of the plaintiffs attorney. The court noted that the lack of awareness by [the plaintiff s] attorneys of the existence of the incarnation of the document was, from all that appears, selfimposed, and that it was apparent from the face of the document that it was seeking legal advice. SEARCH, RETRIEVAL AND PRODUCTION Although the Federal Rules of Civil Procedure allow for broad discovery of matters that may lead to the discovery of admissible evidence, parties often differ on: (1) whether certain materials are the proper subject of discovery; (2) whether the search methods employed are appropriate; and (3) the appropriate form of production. For example, in Smyth v. Merchants Credit Corp., 2013 WL (W.D. Wash. Sept. 16, 2013), Judge Robert S. Lasnik granted a non-party s motion to quash a subpoena. In doing so, Judge Lasnik noted that the plaintiff had previously served a document subpoena on the non-party without specifying the form of production, and that the non-party timely responded to the subpoena by producing documents in hard-copy format. Dissatisfied with the non-party s production in response to the initial subpoena, the plaintiff served another subpoena seeking to require the non-party to produce all documents previously produced as hard copies again in metadata format, plus all s, faxes, or other type of documents, that were referenced in the previously-produced documents. In granting the motion to quash, Magistrate Judge Lasnik noted that Rule 34(b)(2)(E)(ii)-(iii) of the Federal Rules of Civil Procedure allow a party to produce ESI in reasonably usable form where the request fails to specify a form for producing such information, and that [a] party need not produce the same electronically stored information in more than one form. He then held that by producing the documents in hard-copy form in response to the original subpoena, the non-party had complied with its obligations under Rule 34, and therefore was not required to reproduce the documents in response to the second subpoena. Magistrate Judge Lasnik also found that the plaintiff had not presented any evidence that the additional documents it was seeking were being withheld by the non-party or were in the non-party s custody or control. In Ruiz-Bueno v. Scott, 2013 WL (S.D. Ohio Nov. 15, 2013), Magistrate Judge Terrence P. Kemp addressed whether the defendants were required to disclose the procedures or methods they used to search for responsive ESI. The defendants had objected to the plaintiff s interrogatories seeking information on the defendants discovery efforts on the ground that the interrogatories sought irrelevant information that was not likely to lead to the discovery of admissible evidence. 15 return to top

16 should have discussed these issues as part of the Rule 26(f) planning process or engaged in a collaborative effort to solve the problem Magistrate Judge Kemp found that information about the existence, description, nature, custody, condition, and location of documents, and the identity and location of persons who know of any discoverable matter is within the scope of Rule 26 of the Federal Rules of Civil Procedure and thus can be the proper subject of discovery. In the case at hand, Magistrate Judge Kemp noted that he did not have a record of what defendants did or did not do to find ESI, or what that the actual state of defendants ESI happens to be. Accordingly, he ordered that the defendants provide complete answers to plaintiffs interrogatories. However, Magistrate Judge Kemp chided both sides for letting the dispute stay unresolved for so long, and he reminded the parties of their obligations under Rule 26(f), including the requirement that the parties discuss, among other things: (1) the sources of information to be preserved or searched; (2) the number and identities of custodians whose data would be preserved; (3) electronic search terms; and (4) the search methodologies to be employed. Magistrate Judge Kemp also noted that the parties should have discussed these issues as part of the Rule 26(f) planning process or engaged in a collaborative effort to solve the problem once it became clear that an ESI dispute was brewing. In some instances, differences of opinion over whether parties comply with their preservation obligations escalate into a situation where one party requests that the court impose sanctions for what it feels has been an abuse of the discovery process. For example, in Brown v. West Corp., 2013 WL (D. Neb. Dec. 4, 2013), Senior District Judge Lyle R. Strom denied the plaintiff s motion for sanctions pursuant to Rule 37(b) of the Federal Rules of Civil Procedure. At issue was whether the defendant complied with the court s requirement that it disclose information relevant to the scope and depth of defendant s preservation efforts so that the court could effectively review those efforts. Judge Strom noted that the prior ruling was only aimed at identifying sources searched for potentially relevant information at the preservation stage, not at identifying the sources ultimately searched in response to the plaintiff s specific document requests. Finding that the defendant s submissions had allayed the court s concerns, Judge Strom found no reason to require more from the defendant by way of evidence of a proper search. Accordingly, Judge Strom rejected the plaintiff s request for an adverse inference instruction, noting that in the Eighth Circuit such instructions are only appropriate where a court finds intentional destruction indicating a desire to suppress the truth [and] prejudice to the opposing party. Judge Strom also addressed the plaintiff s allegations that the defendant s failure to suspend its automatic deletion of certain information and its repurposing of three computers amounted to spoliation. In analyzing these practices, Judge Strom stated that the autodelete functionality about which the plaintiff complained was in actuality the operation of the defendant s twoweek back-up rotation. Because the 16 return to top

17 lawsuit was not filed until more than a year after the plaintiff stopped working for the defendant, Judge Strom found that the back-up media did not contain any s from the plaintiff. He also found that the defendant s practice of first determining whether relevant information was stored on the computers before repurposing them meant that the defendant appeared to be acting in good faith and without an intent to thwart discovery. The discoverability of certain computers and the proper format of production were at issue in Teledyne Instruments, Inc. v. Cairns, 2013 WL (M.D. Fla. Oct. 25, 2013). There, Magistrate Judge Thomas B. Smith addressed whether: (1) the defendants should be required to submit certain computers and/or images of those computers in the defendants possession for a forensic inspection; (2) the defendants were required to produce a production log organizing their production to correspond to the plaintiff s requests; and (3) the plaintiff was required to include certain pre-litigation communications in its privilege log. The plaintiff argued that it needed to examine certain computers forensically, and claimed that the metadata produced by the defendants reflect[ed] unreliable or erroneous information about the files in question. The plaintiff based this conclusion on the fact that certain information contained in the system metadata did not correspond with the information stored in the application metadata. In denying the plaintiff s request, Magistrate Judge Smith noted that the parties had agreed to an ESI protocol that required the defendants to produce documents in native format, and that the plaintiff had not shown a good reason why it should not be held to the terms of its agreement. In addition, the court held that the request, which came one month before the close of discovery, was likely to delay resolution of the case because the forensic examination would require additional negotiations between the parties regarding the appropriate scope of the examination, as well as the party to conduct the examination. Magistrate Judge Smith also noted that under Rule 34(b)(2) of the Federal Rules of Civil Procedure, the defendant either can produce documents as they are kept in the ordinary course of business or can organize the documents to correspond to the categories in the plaintiff s requests. For the native files and s produced by the defendants, the court found that their production, in conjunction with a spreadsheet identifying the Bates numbers and certain metadata for each file (i.e., the create, last modified and last accessed dates, and the file path (for non- ESI) and the metadata for s) was sufficient to have produced the documents as they were kept in the ordinary course of business. However, Magistrate Judge Smith required the defendant to produce a production log for s and electronic documents that were not produced natively because the defendant made no showing that it preserved relevant application metadata or important functionality like searching and sorting. 17 return to top

18 Finally, with respect to the logging of privileged communications made between the time the plaintiff began its investigation and when it filed the complaint, the court held that such communications were not presumptively exempt from logging. Magistrate Judge Smith did acknowledge, however, that under the Federal Rules the plaintiff could limit the privilege log to the category of documents withheld on privilege grounds, as long as the categorical privilege log provide[s] sufficient information to permit Defendants to assess the validity of the claim of privilege or protection... for each category. MEET AND CONFER OBLIGATIONS Despite the existence of the Sedona Conference s Cooperation Proclamation and decisions from a host of courts requiring parties to meet and confer before bringing discovery disputes to the court, litigants continue to fail to satisfy their meet-and-confer obligations. For example, in FDIC v. 26 Flamingo LLC, 2013 WL (D. Nev. June 10, 2013), Magistrate Judge Nancy J. Koppe denied the defendant s motions on the ground that the defendant failed to meet and confer with the plaintiff, as required under Rule 37(a)(1) of the Federal Rules of Civil Procedure and the corresponding Nevada local rule. Magistrate Judge Koppe rejected the defendant s argument that an exchange of letters between it and the plaintiff relating to the discovery disputes satisfied its meet-and-confer requirements, and noted that the exchange of letters does not constitute a sufficient meet and confer. She also added that personal consultation means the movant must personally engage in two-way communication, and that parties must treat the informal negotiation process as a substitute for, and not simply a formal prerequisite to, judicial review of discovery disputes. With respect to its motion to compel additional 30(b)(6) testimony, the defendant argued that it was not required to meet and confer prior to filing the motion. Judge Koppe rejected this argument as well, finding that the [d]efendant too narrowly construes the purpose of the meet and confer requirements[,] which are designed to promote a frank exchange between counsel to resolve issues by agreement or at least narrow and focus the matters in controversy before judicial resolution is sought. Approximately three months after Judge Koppe s decision in 26 Flamingo LLC, in U-Haul Co. of Nevada, Inc. v. Kamer, 2013 WL (D. Nev. Sept. 17, 2013), Magistrate Judge C. W. Hoffman, Jr. denied the plaintiff s motion to compel on similar grounds. There, the plaintiff s counsel sent a letter regarding certain discovery disputes, to which the defendants counsel failed to respond. The plaintiff argued that in light of the defendant s failure to respond, any effort to meet and confer would have been futile. Magistrate Judge Hoffman disagreed, finding that merely sending a letter did not satisfy the plaintiff s meet-andconfer obligations. Magistrate Judge Hoffman based his denial of the motion on the failure to observe the meet-and-confer 18 return to top

19 requirement under Rule 37(a) and the corresponding Nevada local rule. In so doing, he stated that [a] good faith attempt requires more than the perfunctory parroting of statutory language. Rather, it requires a genuine attempt to resolve the discovery dispute through non judicial means. Magistrate Judge Hoffman also noted that [t]he parties must present to each other the merits of their respective positions with the same candor, specificity, and support during the informal negotiations as during the briefing of discovery motions, and that it is [o]nly after the cards have been laid on the table, that there can be a sincere effort to resolve the matter. PRESERVATION Although a party s obligation to preserve relevant data is broad, courts have made clear that the duty to preserve is not without limits. Courts are often asked to define the extent to which a party must take affirmative actions to preserve relevant information. For example, in In the Matter of the Petition of John W. Danforth Group, Inc., 2013 WL (W.D.N.Y. July 1, 2013), Chief Judge William M. Skretny declined to compel a former employee to turn over his mobile devices for inspection and imaging. There, the petitioner was embroiled in an Equal Employment Opportunity Commission ( EEOC ) charge of discrimination brought by one of its former employees and anticipated being the subject of a subsequent civil action. In the course of investigating the claims in the context of the EEOC action, the petitioner learned that a male coworker of the claimant had relevant information on his personal mobile phone and that the coworker refused to allow the petitioner access to his cellphone unless he was ordered to do so by a court. In denying the motion to compel, Chief Judge Skretny found that the petitioner had failed to establish that this order [compelling forensic imaging] is necessary in order to prevent a failure or delay of justice. He noted that while Rule 27 was enacted to provide parties with an equitable means to preserve evidence that would otherwise be destroyed, it was not a substitute for full discovery. In examining the application of Rule 27 to the facts before him, Chief Judge Skretny noted that Rule 27 requires a particularized showing that intervention prior to commencement of an action is necessary to preserve the subject evidence. Ultimately, Chief Judge Skretny held that the petitioner could not make such a showing because the defendant had stated that he would allow a backup of his mobile device(s) if a court order required him to do so. Similarly, in Lee v. Stonebridge Life Insurance Co., 2013 WL (N.D. Cal. July 30, 2013), Magistrate Judge Jacqueline Scott Corley denied a motion to compel the forensic imaging of the plaintiff s personal computer and iphone. There, the defendant hoped to find evidence relating to certain text messages it claimed were relevant to the case. The plaintiff objected to this request as unreasonable because she had offered to search for and to produce to the defendant the requested information 19 return to top

20 mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures. at her expense without having to surrender her personal computer and iphone. In denying the motion to compel, Magistrate Judge Corley found that the defendant failed to establish the requisite good cause for a forensic examination under Rule 34 of the Federal Rules of Civil Procedure. Specifically, she noted that although the Advisory Committee Notes to Rule 34 contemplate allowing a party to inspect data stored in any medium, Rule 34 was not designed to allow ad hoc access to any electronic information, and it does not provide for direct access to storage systems without a showing of good cause. Magistrate Judge Corley held that the defendant failed to demonstrate that the information it sought was not reasonably accessible through other sources. The fact that the plaintiff had offered to search for and to provide the defendant with the requested information was crucial to this finding. Magistrate Judge Corley also took pains to note that because personal computers contain highly personal and sensitive material, such intrusive searches should be allowed only under very limited circumstances. The high standard necessary for compelling forensic inspections of computers is also illustrated by a recent decision from the Southern District of California. In Sophia & Chloe, Inc. v. Brighton Collectibles, Inc., 2013 WL (S.D. Cal. Sept. 13, 2013), Magistrate Judge Karen S. Crawford denied without prejudice the plaintiff s request for forensic images of certain computers used by the defendant s representatives. The plaintiff had moved to compel the forensic images because the defendant failed to produce any internal s in discovery. Although the defendant sought to explain the lack of internal e- s by claiming that its designers use pencil and paper and do not routinely each other, two of the defendant s key custodians refused to provide a declaration to that effect. Magistrate Judge Crawford found that it was implausible that nobody within the defendant s organization sent or received a single regarding the design or creation of the collection at issue, but she noted that mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures. Rather, Magistrate Judge Crawford found that the defendant had met its burden in opposing the plaintiff s motion to compel a forensic examination for three reasons: (1) the inherent privacy concerns of allowing one party to inspect another party s computers; (2) the lack of proof of dilatory discovery conduct by the defendant; and (3) the existence of a less intrusive means of gathering information about the defendant s preservation and collection. In denying the motion, Magistrate Judge Crawford also noted that absent specific, concrete evidence of concealment or destruction of evidence, courts are generally cautious about granting a request for a forensic examination of an adversary s computer. Judge Crawford further found that the plaintiff could use less intrusive methods of ascertaining the defendant s practices (e.g., written requests and depositions). 20 return to top

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