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2009-04-22T18:14:06Z

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Coming October 1, 2010 - 3rd Edition of Arkfeld on Electronic Discovery and Evidence treatise and new editions of the Legal Hold and Electronic Discovery and Evidence Practice Guides!

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Seminal Decision: Judge Scheindlin's Analysis and Imposition of Sanctions for Failing to Properly Implement Litigation Hold

2010-01-13T23:11:16Z

In this instructive eighty seven (87) page opinion the Court reviews and integrates several important ediscovery legal issues and fashions a textbook step by step approach on how courts will analyze claims of spoliation when allegations of failure to preserve or collect ESI are alleged.

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. CIV. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 11, 2010).

In this investor related action, the defendants, who were connected to a hedge fund that lost money, sought sanctions against the plaintiffs for failing to preserve and produce documents, including ESI, and for submitting false declarations regarding their collection and production efforts.

The Honorable Shira A. Scheindlin, who authored this opinion, reaffirmed in her opening paragraph her infamous Zubulake opinions by stating,

In an era where vast amounts of electronic information is available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party. As discussed six years ago in the Zubulake opinions, when this does not happen, the integrity of the judicial process is harmed and the courts are required to fashion a remedy. Once again, I have been compelled to closely review the discovery efforts of parties in a litigation, and once again have found that those efforts were flawed. As famously noted, "[t]hose who cannot remember the past are condemned to repeat it." By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records - paper or electronic - and to search in the right places for those records, will inevitably result in the spoliation of evidence.

In this lengthy opinion, the Court addresses the issues of "how to define negligence, gross negligence, and willfulness in the discovery context and what conduct falls in each of these categories." In addition, after reviewing the law "governing the imposition of sanctions for a party's failure to produce relevant information during discovery" the Court summarizes the facts "regarding the discovery efforts - or lack thereof - undertaken by each of the thirteen plaintiffs against whom sanctions are sought, and then by an application of the law to those facts."

She concludes by finding that "all of these plaintiffs were either negligent or grossly negligent in meeting their discovery obligations. As a result, sanctions are required."

(Read more and for a copy of the opinion click her)

Court Finds $834,285 to Process ESI Extravagant and Not Credible and Issues Sanctions

2010-01-08T03:03:41Z

Starbucks Corp. v. ADT Sec. Servs., 2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009). In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of proprietary security systems in violation of the contact between the two parties. After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'" ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched.

Did We Really Need

2009-12-31T21:28:15Z

Did We Really Need eDiscovery Procedural Rules?

Mistakes are, after all, the foundations of truth, and if a man does not know what a thing is, it is at least an increase in knowledge if he knows what it is not.

Carl Jung

Three years later - did we really need to amend the federal rules for ediscovery? On December 1st, 2006, changes relating to “electronically stored information” (ESI) in the Federal Rules of Civil Procedure took effect. The changes to Rules 16, 26, 33, 34, 37, and 45 provide mandates to the preservation, discoverability, production, accessibility, and costs associated with ESI which includes e-mail, word processing documents, spreadsheets, voice mail, databases and more.

President Signs Bill Enacting New Evidence Rule 502

2008-09-16T08:11:44Z

On September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. This rule codifies waiver of privilege and work product protection by disclosure, and includes exceptions to such waiver.

A Call for Collaborative Action

2008-08-03T04:07:03Z

"It is not necessary to change. Survival is not mandatory."

- W. Edwards Deming

Requesting and producing discovery material in litigation has undergone a radical change - yet most practitioners cling to the paper past.

"Form or Forms" of ESI

2008-05-16T06:51:50Z

"Form or Forms"

There are daily casualties in the e-discovery battles being fought across the country. Sanctions are issued, tempers flare, and frustration grows as the legal profession tries to come to grips with the amended EDD rules, whether in state or federal court.

Checklist for Selecting a Digital Forensics Expert

2008-08-03T00:23:55Z

Increasingly, legal professionals are confronted with a wide range of litigation which involves discovery of information contained in digital data stored in electronic devices.