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

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
Schanfield v. Sojitz Corp. of Am., et al., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009).
In a wrongful termination suit, the plaintiff had sent 36 emails soliciting counsel from
attorneys, family, and friends. The defendants sought these emails, but the plaintiff
maintained the emails were protected under the attorney-client privilege and workproduct
doctrine. The court held that emails sent to non-attorneys were not protected
since the messages failed to indicate that they were prepared in anticipation of litigation.
The plaintiff asserted that another set of emails, sent to co-workers in an effort to gain
their support in the action against his employer, was protected under the common interest
doctrine. The court disagreed, declaring that any email sent to other employees waived
the plaintiff’s privilege, and without the solicited employees’ clear intent to cooperate
there was no establishment of a common interest under the doctrine. The court held that a
third set of emails—addressed to family members, some of who were attorneys—was
protected by the work-product privilege since the emails were clearly drafted in
anticipation of litigation and were not more likely to be obtained by the employer simply
because a family member was a recipient.
Schmidt v. Levi Strauss & Co., 2007 U.S. Dist. LEXIS 69791, 2007 WL 2688467
(N.D. Cal. Sept. 10, 2007) (Not for Citation). The plaintiff brought an action under the
Sarbanes Oxley Act alleging that they had been terminated in retaliation for complaining
about the defendant’s irregular accounting practices. The plaintiffs moved to compel the
production in native format of all documents previous produced by the defendant in hard
copy form, claiming it was “black letter law” that they were entitled to production in
electronic form. The court disagreed, finding that the plaintiffs had failed to articulate any
specific basis for compelling a second production, had not specified the form of
production in their requests, and had brought this motion six months after discovery had
closed. The court denied the motion without prejudice, leaving open the option for the
plaintiffs to specifically identify, on a document-by-document basis, those documents
they assert are unusable or unreadable in hard copy format.
School-Link Technologies, Inc., v. Applied Res., Inc., 2007 WL 677647 (D. Kan. Feb.
28, 2007). In this breach of contract case, the plaintiff contended that the defendant failed
to properly implement a litigation hold and inform all key employees of the duty to
preserve relevant documents. Relying on Zubulake V, the court stated that the issuance of
a litigation hold notice is not enough; counsel must oversee the process of discovery to
ensure compliance. Here, the court doubted that the lawyers were overseeing the process,
because a key employee testified that she had neither received a hold notice nor any
instructions from counsel to search, gather, or preserve relevant documents. On her own
initiative, she searched her home and computer and disclosed 7,500 pages of documents,
unprompted by counsel. The court also ordered a copy of an identical memory stick
containing all the key employees’ computer files be produced to the plaintiff to ensure
compliance. Although the court found that counsel was in breach of its duty to implement
a litigation hold and oversee compliance, the court found that sanctions were not
appropriate where there has been no showing that any relevant documents or information
had been destroyed.
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