you AND your spouse

In-Sourcing and Outsourcing E-Discovery, 22 No. 3 Prac. Litigator 13, 15
(May 2011).
30. California State Bar Formal Opn., supra note 26, at 4.
31. Craig Ball, What Every Lawyer Should Know About E-Discovery: You Need
To Fully Understand Far More ThanThe Basic, 42 No. 2 Law Prac. 54, 56
(2016).
32. Bob Rohlf & Scott Giordano, The ive Pillars of In-House E-Discovery, 30
No. 10 ACC Docket 40, 42 (Dec. 2012).
33. Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1328-29 (Fed. Cir.
2011). “Spoliation is the destruction or signifi ant alteration of evidence,
or the failure to preserve property for another’s use as evidence in pending
or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 Fed.
Appx. 298, 301 (11th Cir. 2009). While Kentucky recognizes the term
“spoliation,” it does not recognize a separate tort action as in other jurisdictions.
Monsanto v. Reed, 950 S.W.2d 811 (Ky. 1997).
34. In Re Delta/Airtran Baggage Fee Antitrust Litigation, 770 F.Supp.2d 1299,
1307 (N.D. Ga. 2011) (citing Managed Care Solutions, Inc. v. Essent Healthcare,
Inc., 736 F.Supp.2d 1317, 1324–25 (S.D. Fla. 2010)).
35. In Re Kenneth Paul Reisman, Mass. Board of Bar Overseers Public Reprimand
No. 2013-21 (Oct. 2013) (involving counsel’s failure to preserve hard
drive for expert review rather than just documents); see also Zubulake v. UBS
Warburg LLC 220 F.R.D. 212, 216 (S.D. N.Y. 2003) (defining spoliati n
as the “destruction or signifi ant alteration of evidence, or the failure to
preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.”).
36. Zubulake, supra note 35 at 212 (determining that though employee’s
discrimination claim was not filed until ugust 2001, the duty to preserve
arose months earlier when e-mails indicated that employer was aware of
possibility of claim).
37. For example, the Court may impose ‘just’ sanctions, including the payment
of reasonable expenses, including attorney’s fees, caused by a party’s failure
to comply with discovery orders. Fed. R. Civ. P. 37(b)(2); see also Ky. R. Civ.
P. 37.02. Moreover, while sanctions involving a court’s inherent powers to
regulate the conduct of litigation requires a finding of b d faith, sanctions
under some civil rules do not and may include even negligent failures to
comply with discovery obligations. See PIC
Group, Inc. v. Landcoast Insulation, Inc., 2011
WL 2669144, at *10 (S.D. Miss. 2011) (citing
Coane v. Ferrera Pan Candy Co., 898 F.2d 1030,
1032 (5th Cir. 1990)).
38. In re Delta/Airtran Baggage Fee Antitrust
Litigation, 2015 WL 4635729, at *8 (N.D.
Ga. 2015) (ordering $2.7 million in fees where
“discovery misconduct…rendered the court’s
attempt to manage this litigation and move it
forward toward a resolution on the merits as
futile and maddening as Sisyphus’s efforts to
roll his boulder to the top of the hill”).
39. Mary Mack et al., Effective Management of
Litigation Holds and E-Discovery, 27 No. 4
ACC Docket 36 (May 2009) (“Knowing when
a threat is ‘credible’ is ... a subjective matter;
there is no one-size-fits-a l answer for every
company and the answer will not always be the
same for every threat.”). In its simplest form,
a litigation or legal hold is a communication
“issued as the result of current or reasonably
anticipated litigation, audit, government investigation
or other such matter that suspends
normal disposition or processing of records.”
Scheindlin, supra note 17, at 930.
40. See SCR 3.130(4.1) (truthfulness in statements
to others); SCR 3.130(3.3) (candor toward the
tribunal); SCR 3.130(3.4) (fairness to opposing
party and counsel).
41. Scheindlin, supra note 17, at 65.
42. 239 F.R.D. 81 (D.N.J. 2006).
43. Id. at 99.
44. Id. at 102.
45. Id. at 104.
46. In some cases, scrubbing can itself raise issues such as when the metadata
reveals relevant non-privileged evidence. “On one end of the spectrum,
scrubbing metadata is subject to sanctions because it changes the inherent
qualities of electronic documents. While on the other end, scrubbing
metadata from electronic documents is feasible when it is not relevant to
the litigation.” Emily Litzinger The Ethi al Dilemma Of Scrubbing Metadata:
The athway To A Better Approach, 36 N. Ky. L. Rev. 611, 627-28 (2011).
47. E. King, The Ethics o Mining for Metadata Outside of Formal Discovery, 113
Penn. St. L. Rev. 801, 806 (2009).
48. M. Cohen et al., E-Discovery and Electronic Evidence Update, 42 The dvocate
(Texas) 1 (Spring 2008).
49. Id.
50. Id.
51. King, supra note 47, at 830-31. See also ABA Formal Op. 06-442 (2006)
(discussing the ubiquitous nature of metadata and the ethical issues associated
with counsel’s search for and use of metadata).
52. SCR 3.130(1.6) (confidentiali y of information).
53. Miss. Bar, Ethics Op. No. 259 (2012) (collected formal opinions from 17
states relating to confidentiali y of client information contained within
metadata).
54. Id.
55. Hopson v. The Ma or and City Council of Baltimore, 232 F.R.D. 228, 233-34
(D. Md. 2005).
56. Id. (citing Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d
1414, 1426-27 (3d Cir. 1991) (discussing effectiveness of non-waiver agreement
as to a third party involved in unrelated litigation)).
57. Ashish S. Joshi, Clawback Agreements in Commercial Litigation, 87-DEC
Mich. B.J. 34 (Dec. 2008).
58. See Fed. R. Civ. P. 26(b)(5)(B) (clawback provision of federal rules).
59. Steven C. Bennett, E-Discovery Meets the Cloud, 83 N.Y. St. B.J. 45 (May
2011).
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