E-Discovery Case Update

By Larry H. Kunin Chair, Technology Section Litigation Committee Join the Technology Section Litigation Committee. The Litigation Committee is looking for new members. The committee serves a forum to debate technology-related litigation issues and a resource for technology litigation issues for its members. The committee meets quarterly for breakfast or lunch, and sponsors one of the Technology Section’s quarterly CLE luncheons, and provides this quarterly e-discovery update. For information please contact Larry Kunin, Morris, Manning & Martin, LLP at 404-504-7798.

QualComm Update #2 – Sanctions Against Attorneys Lifted. In the last edition of this E-Discovery update, we reported the sanctions of $8,568,633.24 against QualComm and a referral of ethical violations by QualComm’s attorneys to the California Bar. The District Court has now vacated and remanded to the magistrate the sanctions against counsel. The court held that on remand, counsel would be permitted to fully defend themselves notwithstanding the attorney-client privilege.

Request for Metadata Denied. D'Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008): In this case, Plaintiff sought the production of documents in native format, including metadata. Plaintiff, however, had not initially requested the in native format as required by the new Federal Rules. Additionally, defendants argued that the new Federal Rules do not require the production of metadata absent a showing of relevance. The court agreed with the defendant and rejected plaintiff’s request.

Defendant Responsible For Cost Of Plaintiff’s Expert And Over-Exclusion Caused By Unilateral Requests To Broaden Privilege Search. Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008): Following the defendant’s objection to the production of potentially privileged emails under a clawback agreement, the court resolved a motion to compel by requiring that the parties agree to search terms to be given to the plaintiffs expert to search defendant’s back-up tapes. The order required that plaintiff be responsible for the expert’s costs. After an initial search excluded fewer emails than defense counsel expected, defense counsel unilaterally instructed the expert to broaden the privilege search, resulting in additional expert costs and over-exclusion of emails. After rejecting an assertion that communications between defense counsel and the expert were unethical, the court ordered that defense counsel be responsible for the expert’s cost for the additional, broader searches.

Attorneys Negligent for Relying on Client's Defective Search Methods, but Only Client Sanctioned. Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008): In this disability benefits case, defendant produced certain surveillance videos, but failed to produce a specific kitchen video due to what defendant claimed was an oversight. The kitchen video, however, was ultimately produced in a supplemental production. Plaintiff filed a motion for sanctions, seeking reimbursement of depositions and expert costs that were incurred prior to the supplemental production. The court granted the motion based on the defendant’s defective search for producible materials, stating that an oversight does not excuse its production obligations. Notably, the video was not misplaced, it was located exactly where it should have been. The court, however, did not sanction the attorneys for failing to provide more detailed search instructions because plaintiff ’s request for production did not specifically request the video. In other words, counsel did not know specifically what to ask the client to search for. Nonetheless, the client when conducting a search should have located the video. As such, the court issued sanctions against the defendant in the amount of $9,000, a fraction of what was sought.

Spoliation Sanctions Rejected; Although Deleted Email was Not Reasonably Accessible, Court Holds No Duty to Search Backup Tapes. Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008): Due to the manner in which the defendant’s email system was setup, deleted emails are retained for only 8 days, and when an employee is terminated all emails are deleted after 10 days. It is thus unlikely that relevant emails were still on the defendant’s system. The emails are presumably captured on backup tapes but at an expensive cost, reaching almost $80,000 to search one year of tapes. The court weighed (i) the cost against; (ii) the breadth of the plaintiffs request, complications determining which emails were relevant, and potential value given the likelihood they would be cumulative evidence. The court concluded that defendant met a showing of undue burden. The court also rejected a request for spoliation sanctions, holding that deletion of the emails was in accordance with its normal document retention plan.

Merely Alleging Undue Burden is Not Sufficient to Avoid Production. City of Seattle v. Prof'l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008): After finding that requested information was relevant, the court cited new Federal Rule 26(b)(2)(B) to reject a bald assertion that production would produce mountains of work. Instead, to avoid production, the producing party must specifically establish the burdensome nature of production.

Sanctions Rejected Where Computer System Did Not Retain “Sent” Emails. Clearone Communications, Inc. v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008): Plaintiff alleged that a defendant should be sanctioned for failure to produce a smoking gun email that was ultimately produced by another party who was a recipient of the email. The court, however, disagreed, instead finding that the defendant did not withhold the email, it simply did not have it due to the unusual fact that the subject computer system did not retain “sent” emails.

Plaintiff Permitted to Assert State Law Claim for Spoliation For Failure to Implement Litigation Hold. Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 2008 WL 668267 (N.D. Ohio Mar. 11, 2008): During discovery, plaintiff alleged that the defendant failed to implement a litigation hold, resulting in the destruction of relevant evidence. Specifically, plaintiff alleged that the defendant replaced or altered hard drives before plaintiff made forensic images designed to preserve evidence. As a result, plaintiff desired to add a claim of spoliation under Ohio state law, which recognizes such a cause of action. Finding that the plaintiff was able to allege the elements, the court permitted the amendment. The elements of spoliation under Ohio law are: (i) pending or probable litigation involving the plaintiff; (ii) knowledge on the part of the defendant that the litigation exists or is probable; (iii) willful destruction of the evidence by the defendant designed to disrupt the plaintiff's case; (iv) disruption of the plaintiff's case; and (v) damages proximately caused by the defendant's actions.

Request to Produce Document in Native Format Rejected. Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D. Ill. Apr. 2, 2008): Following the production of a document in .pdf and in paper format, defendant requested that the document be produced in native format so that it could see metadata. The court rejected the request, noting that the paper version of the document included a history of changes made to the document. Also, the defendant had not specified what specific metadata it sought, and did not include it in its initial requests. Notably, the court cited the Sedona Principles for the proposition that ordinarily a party need not take efforts to preserve metadata.

Attorneys Sanctioned for Obstructing Forensic Examination. Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008): In this case, the court established a protocol for the inspection of defendant’s computers by a mutual independent forensic expert. When the expert appeared at defendant’s premises, however, his access was restricted by defense counsel, thus preventing a full inspection. Plaintiff filed a motion for contempt, which was granted. The court stated that defense counsel’s conducted amounted to obstruction and ordered counsel to pay plaintiff ’s counsel the fees and costs expended in efforts to enforce the protocol, as well as the expert’s fees and costs.

image049.jpgLarry Kunin practices in Morris, Manning & Martin’s Litigation Department with a concentration in technology and intellectual property litigation, including trade secret, software performance, trademark and copyright litigation, as well as general commercial and reinsurance litigation. Larry received his B.A. from the University of South Florida, his M.B.A. from the University of Miami, and his J.D. from the University of Florida. He can be reached at lkunin@mmmlaw.com.