Federal Court Decisions Involving Electronic Discovery, December 1 ...

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Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 password-protected web site that was used to communicate with their brokers. Prior to the suit, the defendant’s broker asked for information on the defendant’s claims and had received replies on several occasions containing notes from CNA counsel, which were supposed to be posted to a specially-designated, restricted area of the web site. These allegedly privileged communications was included with other communications that the broker provided to the defendant. The defendant’s counsel, upon reviewing the information and realizing that it was potentially privileged, notified CNA’s counsel. The defendant asked the court to rule as to whether privilege or work product protection applied to the communications, and if so, whether any privilege or protected had been waived. The court applied Maryland privilege law, which uses the “intermediate” approach to privilege waiver, taking into consideration (1) the reasonableness of the precautions to protect confidentiality, (2) the number of inadvertent disclosures, (3) the extent of the disclosure, (4) the promptness of the measures taken to rectify the disclosure, and (5) the overriding interests of justice served by enforcing the privilege in spite of the disclosure. The court found that CNA failed to adequately protect the confidentiality of its attorney-client communications and that the broker acted within the scope of his duties in providing the documents to his client. Federal law regarding work product protection also applied, and federal law gives heightened protection to “opinion” work product provided to a client in contemplation of litigation. Reviewing precedent from the Fourth Circuit and other authority on the waiver of work product protection, the court found that disclosure of counsel’s notes and opinions to the defendant’s agent was tantamount to disclosure to the defendant, and the defendant was free to use them to the extent they were relevant and otherwise admissible in the proceeding. Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357 (S.D. Fla. Apr. 22, 2009). In an action against a former employee by a condominium management company, the company moved, inter alia, for an adverse inference sanction, alleging the employee downloaded proprietary ESI prior to establishing her own competing business. The company requested certain metadata that its forensic expert argued would prove the employee had downloaded the data; however, the data had been destroyed after notice of litigation had already occurred. The court denied the motion for sanctions, citing the employee’s lack of computer knowledge as sufficient excuse to defeat a finding of bad faith necessary to prove spoliation. Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). In an action for breach of contract and theft of proprietary business information, the court ordered that the defendant produce email in native format, as hard-copy printouts or .tiff images were not reasonably useable and not the formats in which the information was routinely kept, and the cost of production in native format was low. However, noting that the plaintiff’s original request consisted of “ancient boilerplate designed for discovery in a paper world, the parties had not met and conferred prior to discovery, and that the plaintiff accepted the defendant’s initial production of hard copy documents. Finding that both parties “went through the same stop sign, it appears to me that they should both pay for the crash,” the court ordered that the parties split the cost of paralegal review to delete privileged material, not to exceed $4,000. Copyright © 2009, The Sedona Conference ® 22 www.thesedonaconference.org
Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009 Covad Comm’s Co., v. Revonet, Inc., 258 F.R.D. 5 (D.D.C. May 27, 2009). The plaintiff alleged breach of contract and expropriation of information and sought production of forensic images of the defendant’s computer databases and e-mail servers. The defendant responded that previous server failures, along with the age of the servers, created too great a risk in implementing the request. Citing Rule 26(b)(2)(C), the court granted the plaintiff’s request for a forensic image of the computer database, reasoning the imaging was no more burdensome than using a server for everyday business activities and would ultimately benefit both parties. The court held that a parallel search of the defendant’s server for comparison of what was lost in the crash was also appropriate, since the defendant had failed to backup its servers, one of which crashed after the initiation of the case. Citing the Sedona Conference ® Cooperation Proclamation (2008), the court opined the defendant could have been more cooperative in the initial e-mail search but reserved its decision regarding forensic examination of the servers until after the production of the forensic copy. Craig and Landreth v. Mazda Motors, Inc., 2009 WL 2245108 (S.D. Ind. July 28, 2009). In a motion to compel discovery in native format, the defendant contended that it complied with the discovery rules by delivering the documents in PDF format. The court held, citing FRCP 34 and the 2006 Advisory Committee Notes, that the parties should not attempt to make the production more difficult than it need be. To that end, the court noted that the documents must be produced in native format, even if the language of the original request was somewhat ambiguous. Cumberland Truck Equip. v. Detroit Diesel Corp., 2008 WL 511194 (E.D. Mich. Dec. 2, 2008). In this antitrust action, the defendants moved for spoliation sanctions against the plaintiffs, alleging that the plaintiffs failed to preserve revenue and expense data as well as email. The court denied the motion without prejudice, considering it “premature.” The defendants had only shown “a suspicion of prejudice,” there was no showing of intentional loss of evidence, and this was “not a situation where one party had access to the evidence and derived an advantage therefrom while denying the opposing party access…” The court admonished the plaintiffs, however, that “future losses of data, whether through negligence or else, are not acceptable.” Cunningham v. Standard Fire Insurance Co., 2008 WL 2668301 (D. Colo. July 1, 2008). The plaintiff homeowner sued the defendant insurance company for bad faith and breach of contract. The defendant objected to several proposed topics of inquiry in the plaintiff’s Rule 30(b)(6) Notice of Deposition and moved for a protective order. The court reviewed the proposed topics in detail and restricted inquiry into the defendant’s information management procedures in general, and on email backup procedures for certain named employees in particular, on relevance grounds. However, the court allowed inquiry into the defendant’s discovery response activities, refusing to grant a blanket protective order on the basis of nonspecific and conclusory claims of attorney client privilege and work product protection. CynergyErgonomics, Inc. v. Ergonomic Partners, Inc., 2008 WL 2064967 (E.D. Mo. May 14, 2008). In a trademark infringement action, the court refused to take judicial Copyright © 2009, The Sedona Conference ® 23 www.thesedonaconference.org
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Federal Court Decisions Involving Electronic Discovery, December 1 ...

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