E-discovery requests automatically unduly burdensome?

This really happened recently.  I was having a Rule 26(f) conference and, as I am supposed to, I said the words (gasp) e-discovery.  The response?  The response was to suggest that they were already contemplating that I would be asking for far more than what is reasonably necessary and that they already anticipated there would be problems.

So they were objecting before the discovery was even served at the mere mention of the word "e-discovery"?   Do they already have the response to my first motion to compel drafted? (Perhaps I should serve such a motion to compel with the requests and streamline the whole process).

No doubt this is the strategy many will employ, but believe it or not, in some cases, the issues are fairly discreet, the list of players reasonably short, and e-discovery is not that hard.  Let's all remember to object in good faith.

First Amendment Trumps E-Discovery

In a recent and previously sealed federal fraud and tax evasion case (U.S.A. v. Amazon.com, W.D.WI, Case No. 07-GJ-04, filed 6/26/07), the district court ruled that customers who bought used books via Amazon.com have a cognizable First Amendment right to maintain the privacy of their reading choices.

The case stemmed from the U.S. Justice Department's discovery attempt (via a grand jury subpoena) to obtain Amazon customer records in order to advance its criminal case against a used bookseller suspected of committing criminal fraud and tax evasion. The Justice Department in this case does not suspect Amazon nor its customers of any wrongdoing. It simply wants to use the customer information to build a case against the defendant.

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Return e-Receipt Requested -- A Useful Tool

In a time when email is increasingly used for correspondence once reserved for snail mail, what do you do when you need to be sure the other party received your correspondence? Many law firms and corporations still use regular certified mail, return receipt requested. But what if that is impractical?

In a recent article in Inside Counsel, the author explored the growing options for software to send “registered email.” In this article the need for authenticated email is explored in two different scenarios, to prove insurance claims, and to admit emails in accordance with the Federal Rules of Civil Procedure (Lorraine v. Markel).

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Electronic Documents--Don't Trust That Date

Dates can be crucial in litigation. Cases are won or lost on whether the right things happened at the right time. Accordingly, we often use documents to construct our chronologies early in the case and move for summary judgment. But dates on electronically stored documents may not always be what they seem. For example, at first glance, one may assume that a date on an electronically stored document is the creation date or distribution date. Maybe its far from either.

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Spoilation and Sanctions: When a Rogue Employee Deliberately Destroys Data

Assume the worst of your employees, lest a judge or jury assume the worst of you. 

That's the upshot of a recent e-discovery case out of the US Bankruptcy Court for the District of Hawaii. The debtor, Hawaiian Airlines, had shared proprietary information with prospective post-petition investors under a strict confidentiality agreement. Hawaiian later claimed that Defendant Mesa Airlines, once a prospective investor, had breached the confidentiality agreement and misused proprietary information for Mesa's own competitive advantage. After Hawaiian filed its complaint, an attorney for Mesa promptly sent an email to Mesa's three top officers imposing a "litigation hold," which explicitly included electronic documents. One of the recipient executives, Vice President and CFO Peter Murnane, responded by sending out emails from his company account (um, wow) to outside individuals searching for a data-wiping program. Apparently his search bore fruit, and Murnane installed software containing a data-wiping feature on his two company laptops.  He also changed the system clocks on those two laptops in an attempt to make it appear that he had deleted the data well before Hawaiian filed its complaint.

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Ephemeral Data -- What is it and Why Does it Matter?

Much of the data stored on computers, such as the data stored in random access memory (RAM) and internet caches, is temporary and "ephemeral". Because these temporary, transient files are deleted as often as every few hours, it would seem that there would not be a duty to preserve them.

However, in Columbia Pictures Indus. Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 46364 (C.D. Cal. June 19, 2007) Magistrate Judge Jacqueline Choolijan, following Ninth Circuit precedent, ordered the defendants to preserve data "stored" in RAM.  The court held that the server log data (IP addresses, etc.) stored in RAM was extremely relevant stored information under Rule 34 of the Federal Rules of Civil Procedure.
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Is Encrypted Email Discoverable?

Yes-- at least on the server side.
In a recent federal drug trafficking case (.pdf), the USDC for the Eastern District of Calif. was able to convince a Canadian court to issue an order granting the U.S. Drug Enforcement Administration access to clear text copies of encrypted emails sent through a Canadian email service called Hushmail ...

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Choose "Person Most Knowledgeable" Wisely in the E-Discovery Era

Federal Rule 30(b)(6) depositions of the "person most knowledgeable" are nothing new.  Rule 30(b)(6) depositions have, however, taken on additional significance in the age of electronic record-keeping and electronic discovery.  Where before litigants employed the "Keeper of Records" deposition to authenticate documents, litigants are now turning to Rule 30(b)(6) depositions to address the often complex issues of electronic data preservation and production.   As a result, companies need to consider e-discovery issues when selecting a "person most knowledgeable" for Rule 30(b)(6) depositions pertaining to electronic preservation and production matters.  Failure to select someone who can speak to the complex technological mechanisms utilized to satisfy e-discovery obligations could result in prolonged litigation and costly disputes over spoliation and other electronic document production issues.  So, choose wisely, and consider employing an IT professional at your company for this critical task. 

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