E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

We did it last year for two thousand and eight:
A review of the year’s e-discovery “greats.”
Here’s a more recent summary wholly in rhyme
To get you all up-to-date on two thousand and nine.

As a whole, common themes have begun to emerge,
Due to problems that have spurred many judges to urge
More cooperation and much earlier e-discovery plans,
And clarity on native-metadata versus PDF scans.
Numerous sanctions resulted, the courts raising their swords
Of adverse inference, default judgment and monetary awards.

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On January 21, 2010, the Wisconsin Supreme Court will hear public comment regarding proposed amendments to the state rules of civil procedure to include specific provisions regarding discovery of electronically stored information. According to the Court's Order, the hearing will take place at 9:30 a.m. at the State Capitol in Madison. 

Although this will be the first public hearing before the Wisconsin Supreme Court, it will not be the first time members of the public have had the opportunity to comment on the proposed rules. 

Prior to filing the petition to amend the rules, the Wisconsin Judicial Council sent the proposed amendments to more than 20 organizations and individuals within the business and legal communities, including every section of the State Bar, several associations of trial and family lawyers, the state chief judges, e-discovery consulting firms, the Deans of Marquette and UW-Madison Law Schools, Wisconsin Manufacturers and Commerce and others. Less than a handful of those solicited responded, each offering minimal, but positive remarks.

Given the limited feedback the Judicial Council received, it appears unlikely that the public hearing will include any heated debates. However, for those interested in e-discovery in Wisconsin, January 21, 2010 appears to be the time to speak or forever hold your peace.

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You have one new voice message. First message: Monday, 4:45pm --

I must have just missed you, Vice President Joe.
It's Mike van Dyke, your CEO.
Remember that complicated widget invention --
Our best-seller you copied from the Widget Convention?
The one in your job interview that you mentioned,
And stole from your last boss for withholding your pension?

Well, they've sued us for patent infringement and such,
And theft of trade secrets -- it's really too much.
So I need you to shred all the documentation:
The tech drawings you stole; design specifications.
And that memo you wrote, before everything,
Saying that they had a patent, worth copying.

And yes, it goes without saying, too, Joe --
Please immediately delete this voicemail also.

End of new messages.

A lawyer who finds a copy of this voicemail buried in the other side's electronic document production will immediately splurge on champagne and party hats. And who can blame him? But here's the question: would this message be captured in the net of responsive material, or would it slip through the cracks? The answer may depend less on the skill of document retrieval experts, and more on how your company (or client's) voicemail system works.

It's old news that voicemail systems have graduated from analog to digital. Now, while the self-contained answering machine is still around, the digital era has also ushered in various types of integrated systems. The most complex, like the famed mythological dog Cerberus guarding the gates of Hell to prevent the dead who cross the river Styx from escaping, have three heads: the company telephone system, e-mail system, and computer system. And while a message on a self-contained machine can be difficult for a company -- let's call it Hades, Inc. -- to track and easy for an individual employee to get rid of, life with Cerberus is akin to life in the underworld: there is no escape, and nowhere to hide.
 

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Arizona is suddenly on the cutting edge of e-discovery law, with a new decision from the state's supreme court. 

In what freedom-of-information advocates hailed as a groundbreaking victory, the Arizona high court held Thursday that when a public entity maintains a public record in electronic format, any attached metadata also constitutes a public record subject to disclosure.

Writing for the unanimous Court, Justice Scott Bales stated that "[i]t would be illogical, and contrary to the policy of openness underlying the public records laws, to conclude that public entities can withhold information embedded in an electronic document, such as the date of creation, while they would be required to produce the same information if it were written manually on a paper public record."

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"Because it is there" may be a perfectly adequate response to the question of why you want to scale a mountain (although it invites the follow-ups of "are you crazy?" and "does your spouse know you spent four thousand dollars on climbing gear?"). It does not, however, cut it when a judge asks why you want a mountain of metadata. 

The court in Dahl v. Bain Capital Partners, LLC, 2009 U.S. Dist. LEXIS 52551 (D. Mass. June 22, 2009) reminds us of this fact.  In that case, a requesting party sought every last scrap of metadata associated with the electronically stored information produced by the other side. The producing party refused, instead offering to hand over just 12 fields of metadata. Ignoring the inevitable follow-up question, "Does your client know you spent four thousand dollars on a discovery dispute over metadata?", the requesting party took the issue before the court. 

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It would be so nice if something made sense for a change!

- Alice, “Alice’s Adventures in Wonderland” by Lewis Carroll
 

What happens when, out of nowhere, the “other side” in a litigation matter wants electronic information during discovery not from you, but from a third-party who has worked directly with your company? Yikes! What about all that confidential information you provided them, never imagining that anyone else would have access to such electronic information? Alternatively, what if those third parties have purged their files and no longer have the requested information? Is there a duty to maintain electronic documentation which is out of your immediate control? 

The issue was addressed by United States Magistrate Judge Paul W. Grimm in his decision Goodman v. Praxair Servs., Inc., 2009 WL 1955805 (D. Md. July 7, 2009), where the Plaintiff asked that consultants to Praxair Services turn over their electronic documents in discovery.  The Plaintiff alleged that the Defendants violated their duty to preserve evidence when they failed to implement a litigation hold on the third party, resulting in a significant loss of data, including the contents of hard drives and emails relevant to the dispute at issue.

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It is rare to find one of those shared tenets that defy all cultural, geographic, and chronological boundaries -- some fundamental underpinning of life found everywhere from the days of the caveman to the modern age. One we can all agree on, however, is that a professional's worth is and always has been commensurate with his or her experience. The senior dragon slayer of King Arthur's round table received a shinier suit of armor than the new guy. The master caveman's time and worth rose above the apprentice's. And in present day law firm culture, the value of the Associate is often dwarfed by that of the Senior Partner in the cozy corner office.

Electronic discovery, however, has turned this fundamental dynamic on its head. In most areas of the law, change is effected in small increments, opinion by opinion and statute by statute. Sage senior lawyers add to their existing knowledge by keeping up on recent developments -- no fundamental change in thinking is required. Electronic discovery, however, has forced a radical, qualitative change in almost every aspect of how discovery is conducted. Heck, an entire Federal Rule of Civil Procedure was rewritten to account for it. And the dreaded "it" -- that virtual elephant in the room -- is everywhere. As Judge Shira Scheindlin of the Southern District of New York observed in an interview, "We used to say there's e-discovery as if it was a subset of all discovery. But now there's no other discovery."

This ever-expanding nature of e-discovery is carving out a unique dynamic in the three-ring circus that is the Law Firm and the in-house legal department. In short, the problem is that the two parts of the equation needed to master e-discovery (expertise in discovery law and procedure, and expertise in electronic media) are currently located in two separate circus rings: the Ringmaster's and the Clown's.
 

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"It ain't over 'till it's over."  Yogi Berra was talking about baseball, but the quote applies just as well to lawsuits.  It is no secret that litigation can be a very protracted process, and, when a party is subject to a litigation hold, it seems that much longer. 

One question that lawyers get with some frequency is "how long do we have to maintain this hold?"  The answer is that it depends.  One touchstone, though, is that the hold should remain in effect until all deadlines for appeal or further review have expired.

In a recent Louisiana case, Pipes v. UPS, UPS was hit with a motion for sanctions due to alleged spoliation of evidence.  One of its drivers was involved in an accident.  After the accident, UPS fired the driver and he filed a grievance protesting his termination.  He argued that the accident was not his fault, but rather was caused by a faulty tire on his delivery van.  His grievance was denied at all stages, and his firing was upheld.  Following the end of the grievance process, van maintenance records were destroyed, and the allegedly faulty tire was released to a vendor.

However, the fired driver then sued both UPS (for firing him) and his union (for inadequate representation) in federal court.  When he discovered that the maintenance records and tire were gone, he brought a motion for sanctions.  UPS's managers testified that they thought they could put the matter behind them when the grievance was decided, and so had gotten rid of the evidence.  The court ultimately declined to sanction UPS because the driver's claim lacked merit, and the tire and maintenance records were ultimately only slightly relevant to his claims.

As demonstrated by this case, it is imperative that litigation holds remain in place until appeal or review opportunities have passed.  This is a tricky issue where, as here, the avenue for appeal may be novel (one of UPS's managers testified that he had never seen a grievance decision appealed).  It is important that the person managing the hold make sure that all key players are on the same page about when the hold may be released, and that attorneys keep their clients informed about the possible avenues and timelines for appeal.

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Apparently taking a break from figuring out where the money will come from to run California, The Governator signed into law the Electronic Discovery Act (“EDA”) on June 29th, joining the ranks of approximately twenty other states in adopting specific rules designed to manage e-discovery. Like most of these other states, California’s EDA is substantially based on the 2006 amendments to the Federal Rules of Civil Procedure.

According to Eric Sinrod, writing in The FindLaw Technology Blog, “The new California rules, which represent the culmination of several years of negotiations, appear to work a compromise between plaintiff trial attorneys who sought in depth access to electronic records and corporate defense counsel who desired safeguards for data that they believe is too burdensome and costly to produce.” 

A significant difference between the Federal Rules and the EDA is the inclusion in the EDA of a safe harbor that does not sanction a party or attorney who fails to produce electronically stored information that has been lost, damaged, altered or overwritten, if it was done as a result of the routine, good faith operation of an electronic system.

Additionally, according to Sinrod, the Act directs that “electronically stored information should be provided in the form ordinarily maintained or in a reasonably usable form; a party may object to the production of electronically stored information on burden or inaccessibility grounds, but that party bears the burden of proving that objection, and a court still may require production upon a showing of good cause by the demanding party; and the Act is applicable to third parties pursuant to subpoenas, although one can expect potentially less e-discovery burdens being placed on third parties as opposed to parties in a case.”

Based upon the current legislative trend, it should be anticipated that eventually all of the states will soon have similar laws in place to address the evolving issues associated with electronically stored information.

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