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"Inhibited Ability to Participate Meaningfully in Electronic Discovery" Results in Reduction of Rate of Recoverable Attorney's Fees
Following a verdict in their favor, plaintiffs moved for attorneys' fees as provided by law. Finding that plaintiffs were the "prevailing parties" under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys' requested hourly rates, with one exception. Regarding the time spent by one attorney on discovery, the court ordered the requested rate to be reduced upon finding that her "inhibited ability to participate meaningfully in electronic discovery" was indicative of "novice skills in this area" and not "experienced counsel."
The opinion can be read in it's entirety by clicking here
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Computer Forensics Proves "Balloon Boy" a Hoax
Typically unbeknownst to the public and media, digital forensics plays a key role in most investigations. From the BTK killer to the Laci Peterson murder case, digital forensics is often used behind the scenes to uncover crucial information. The recent "Balloon Boy" hoax is yet another example of the critical role of digital forensics.
Read the article here
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States Embrace Electronic Discovery
"If you were under the misguided impression that attorneys and their litigant clients only need to deal expressly with electronic discovery in federal court, you need to wake up and smell the e-discovery coffee. In the wake of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure, state legislatures have been getting into the act, adopting e-discovery rules for state court cases. Indeed, more than half of our 50 states have gone this route so far."
Read the entire article by clicking here
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Lawyers Beware: Judges May Be Watching You on Social Media
Last week I spoke at Knoxville's Inns of Court. Prior to Chuck Young from Kramer Rayson and I going through one of our eDiscovery scenarios, another attorney spoke about social networking sites. K.O. Herston provided a very insightful talk about social networks and their many uses. He provided stories of jurors being dismissed due to their social network group memberships, experts being researched, and people not being chosen for positions because of their online personalities. In preparing for this newsletter, I encountered a good article, "Lawyers Beware: Judges May Be Watching You on Social Media".
Click here for the entire article. |
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eDiscovery Statistics Reveal New Trends
"In a July 2009 publication by Gibson Dunn & Crutcher (Gibson), the results of a review of more than sixty federal and state court opinions were released. And the results are very telling. Parties are bringing more e-discovery issues to the court, and the courts are awarding more sanctions. Also, it's not just civil parties, but also government entities that the courts are addressing with these obligations."
Read the entire article by clicking here |
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Research Experts on Daubert Tracker
"The Daubert Tracker has amassed a collection of over 10,000 briefs and other supporting documents from both appellate and trial courts relating to "gatekeeping" challenges to expert witness testimony. The documents are all in searchable PDF format and date back to 1993 and our collection of documents is agressively updated daily."
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EDiscovery Case Law
Court Imposes Sanctions for Litigation Hold Failure, Orders Funding of E-Discovery Seminar on Proper Preservation
Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29,2009)
In this litigation, the plaintiff sought default judgment or adverse inference sanctions claiming the defendants failed to preserve and destroyed relevant documents, and also sought punitive monetary sanctions. The defendants' attorneys drafted a litigation hold, which the defendants failed to issue, and subsequently hired an outside vendor to recover deleted e-mails after the defendants' internal information technology (IT) department failed to recover the documents. Finding the defendants' local counsel had little to do with discovery responses, and that the other firm drafted the litigation hold policy and made efforts to confirm client compliance, the court declined to sanction the attorneys. Addressing the defendants' conduct, the court held that while the defendants failed to meet preservation obligations by failing to issue the litigation hold, the conduct was not intentional and therefore did not warrant imposition of a default judgment or an adverse inference. However, the court determined some sanctions were appropriate and awarded future deposition costs, excluding attorneys' fees, to the plaintiff. Additionally, if the plaintiff discovered a specific, relevant e-mail had not been produced, it would be allowed to petition the court for further relief. Finally, the defendants were ordered to pay $2,500 to the Tulsa County Bar Association to fund a seminar on litigation holds and preservation of electronic data.
Finding a Warrant Unnecessary, Court Orders Internet Service Provider to Comply with Government Subpoena Seeking E-Mail
United States v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009)
In this unlawful materials prosecution, the Government subpoenaed the Internet service provider (ISP) seeking the contents of electronic communications, including previously opened or sent e-mail that belonged to the defendant. After the ISP failed to produce e-mails that had been stored for fewer than 181 days, the Government moved to compel production of the e-mails' content. The ISP argued the information sought required a warrant. Analyzing the issue using the Stored Communications Act (SCA), the court determined the ISP must comply with the Government's subpoena if the e-mails are held or maintained solely to provide the customer storage or computer processing services. The court also determined that previously opened e-mails stored by the ISP for web-based e-mail systems - as distinguished from other e-mail systems - are not in "electronic storage," which is defined by the Wiretap Act as storage incidental to electronic transmission and for the purposes of backup protection of the e-mail. Based on this finding, the court ordered the ISP to comply fully with the Government's subpoena.
Court Grants Adverse Inference Sanction for Destruction of Laptop, Failure to Preserve E-Mails
Goodman v. Praxair Servs., Inc., 2009 WL 1955805 (D. Md. July 7, 2009)
In this breach of contract dispute, the plaintiff, a pro se litigant, sought spoliation sanctions alleging the defendant failed to issue litigation holds and preserve relevant evidence, destroyed employees' computers and failed to search disaster recovery tapes. The defendant argued a litigation hold was properly issued, there was no duty to preserve employees' computers, the plaintiff's motion was untimely and the plaintiff failed to provide proof regarding the disaster recovery tapes claim. Despite finding the plaintiff brought his motion for spoliation more than five months after discovery's conclusion, the court denied the defendant's argument that the motion was untimely because the dispositive motions had not yet been ruled on. The court then determined that the duty to preserve arose when the plaintiff sent a letter informing the defendant that he had consulted attorneys regarding the matter. Next, the court held that the defendant failed to issue litigation holds to key players and, as a result, three computers were discarded in violation of the preservation duty. The court determined that, while the defendant did not act in bad faith, it acted willfully when it intentionally destroyed the computers and e-mails. Finding only one of the destroyed computers contained relevant evidence; the court issued an adverse jury instruction for the evidence contained on that particular computer. Finally, the court allowed the plaintiff to compile a list of expenses incurred in filing the instant motion, excluding attorney's fees because the plaintiff was pro se.
Court Issues Adverse Inference Sanction for Failure to Implement a Litigation Hold
KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D.Ky. July 22, 2009)
In this copyright infringement action, the plaintiff moved for sanctions in the form of a default judgment or, in the alternative, an adverse inference instruction for spoliation. The court found that an October 2005 phone call from the plaintiff and the November 2005 filing of a complaint were both notice of litigation, and that the defendant subsequently failed to preserve potentially discoverable e-mails by continuing to delete and overwrite data even after the receipt of a preservation letter. The court held that the defendant's deletion of data and failure to implement a litigation hold fell beyond the scope of the routine, good faith operation of an electronic information system and constituted spoliation. Finding that an adverse inference instruction would redress the spoliation, the court granted the motion for adverse inference sanctions but denied awarding default judgment.
Court Awards Default Judgment Sanctions for "Mockery" of Discovery Process
1100 West, LLC v. Red Spot Paint & Varnish Co., Inc., No. 1:05-CV-1670 (S.D. Ind. June 5, 2009)
In this environmental litigation, the plaintiff requested default judgment sanctions alleging that the defendant purposefully withheld responsive documents and that the witnesses lied or misrepresented material truths. The defendant argued that it relied on its attorneys for discovery advice and therefore any error was the attorneys' responsibility. The defendant's attorneys claimed the defendant failed to provide accurate and complete information, and that once potential attorney misconduct was discovered, the firm took prompt steps to remove the offending attorneys. Determining the case was "replete with examples of violations of discovery rules" that contributed to the lengthy litigation, the court noted that the defendant "made a mockery of the discovery process and [has] subjected the truth to ridicule." In addition, the court stated that the defendant could "not hide behind [its] own failure to organize its records then rely upon its lawyer to straighten up its mess." The court also found the defendant's attorneys had enough "knowledge of its client's apparent disregard" for the Federal Rules of Civil Procedure and thus must be held accountable. Accordingly, the court granted the plaintiff's motion for default judgment sanctions and ordered the defendant and its attorneys each pay one-half of the plaintiff's reasonable attorneys' fees and costs.
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