e-Discovery Docket Sheet

Alleging various violations of the Securities Exchange Act, the Securities and Exchange Commission (SEC) moved to compel production of numerous electronic documents previously withheld on the grounds of attorney-client and work-product privilege. Among the documents the SEC requested were files attached to privileged e-mails. The defendant claimed the attachments were drafts of attorney comments and need not be produced. Ordering the defendant to produce the attachments, the court declared the defendant had not identified which documents fell within the privilege. The defendant also protested production of a computer-created contact list because it had not been identified as privileged until three weeks after the privilege-index deadline. The defendant claimed the list did not exist because it had not been printed to paper until three weeks after the deadline for producing privileged-document indexes. The court rejected this argument as frivolous, asserting that Fed.R.Civ.P. 34(a) has included electronic data as being part of a Rule 34 request for more than 30 years. The court declared, “[t]he fact that the data has not been printed out does not mean that the document does not exist … [otherwise] any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.” Securities and Exch. Comm'n v. Beacon Hill Asset Management LLC, 2004 WL 1746790 (S.D.N.Y. Aug. 3, 2004).

In a discovery dispute relating to the allocation of costs for responding to interrogatories, the defendant sought a protective order declaring that it would cost $60,000 to produce the requested information, which was in electronic format. A magistrate judge ordered the plaintiff to pay half of the costs. In response to the order, the plaintiff argued that it was requesting only “accessible data,” making cost-shifting inappropriate in this case under the Zubulake seven-factor test. Finding cost-shifting was fair, the magistrate asserted that “requiring the parties to evenly shoulder the expense is the most effective resolution because it balances the benefit of the discovery for [the plaintiff] and provides [the defendant] with incentive to manage the costs it incurs in answering [the plaintiff's] interrogatories.” The magistrate further classified the expenses as court costs that the prevailing party could recover. Multitechnology Servs. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004).

In a breach of contract action, the plaintiff and the defendant filed separate motions to vacate litigation costs awarded against them pursuant to a federal statute. The costs, which related to the production of electronic documents by third-party defendants, involved the printing of electronic documents, as well as other e-discovery costs. The court denied the award of costs for printing the documents, noting that printing was a convenience and the documents could have been produced in their original electronic form. The court also refused to award expenses for the e-discovery costs, stating that such costs were not recoverable under a federal statute. One component of the e-discovery costs related to 19 disks containing files that were originally printed by the third-party defendants at a cost of more than $100,000. After this paper production, the defendant requested that these same documents be produced electronically because the printed copies lacked metadata and the electronic files could be more easily searched. The district court granted the request. The third-party defendants then hired a consultant to categorize the disks and redact privileged documents, incurring an additional $182,595.47 in costs. The court declined to award any of the costs relating to the 19 disks. Zenith Elec. Corp. v. WH-TV Broad. Corp., 2004 WL 1631676 (N.D. Ill. July 19, 2004).

Challenging a misdemeanor conviction for harassment by electronic communication, the defendant argued, among other things, that the trial court erred by not granting her a continuance. Specifically, the defendant argued that she was entitled to a continuance because she did not receive e-mails, relied upon by the prosecution, until the day of trial. Defense counsel further argued that it needed the e-mails in order to have an expert evaluate their source before trial. Denying the defendant's motion, the trial court noted that copies of the e-mails were available three days before trial, and that defense counsel should have picked up the copies at the district attorney's office. On appeal, the appellate court also indicated that counsel should not have waited 17 days before the trial to file discovery and inspection-of-evidence motions, and that counsel could have hired an expert even if the e-mails were unavailable for review. In affirming the trial court's decision, the appellate court declared, “the failure to obtain an expert or to obtain the e-mails until the eve of trial can hardly be the fault of the State … [the defendant] was at least partially, if not totally, responsible for their last-minute production.”

Court Orders Production Of Attachments and
Nonprinted Documents

Alleging various violations of the Securities Exchange Act, the Securities and Exchange Commission (SEC) moved to compel production of numerous electronic documents previously withheld on the grounds of attorney-client and work-product privilege. Among the documents the SEC requested were files attached to privileged e-mails. The defendant claimed the attachments were drafts of attorney comments and need not be produced. Ordering the defendant to produce the attachments, the court declared the defendant had not identified which documents fell within the privilege. The defendant also protested production of a computer-created contact list because it had not been identified as privileged until three weeks after the privilege-index deadline. The defendant claimed the list did not exist because it had not been printed to paper until three weeks after the deadline for producing privileged-document indexes. The court rejected this argument as frivolous, asserting that Fed.R.Civ.P. 34(a) has included electronic data as being part of a Rule 34 request for more than 30 years. The court declared, “[t]he fact that the data has not been printed out does not mean that the document does not exist … [otherwise] any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.” Securities and Exch. Comm'n v. Beacon Hill Asset Management LLC, 2004 WL 1746790 (S.D.N.Y. Aug. 3, 2004).

In a discovery dispute relating to the allocation of costs for responding to interrogatories, the defendant sought a protective order declaring that it would cost $60,000 to produce the requested information, which was in electronic format. A magistrate judge ordered the plaintiff to pay half of the costs. In response to the order, the plaintiff argued that it was requesting only “accessible data,” making cost-shifting inappropriate in this case under the Zubulake seven-factor test. Finding cost-shifting was fair, the magistrate asserted that “requiring the parties to evenly shoulder the expense is the most effective resolution because it balances the benefit of the discovery for [the plaintiff] and provides [the defendant] with incentive to manage the costs it incurs in answering [the plaintiff's] interrogatories.” The magistrate further classified the expenses as court costs that the prevailing party could recover. Multitechnology Servs. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004).

In a breach of contract action, the plaintiff and the defendant filed separate motions to vacate litigation costs awarded against them pursuant to a federal statute. The costs, which related to the production of electronic documents by third-party defendants, involved the printing of electronic documents, as well as other e-discovery costs. The court denied the award of costs for printing the documents, noting that printing was a convenience and the documents could have been produced in their original electronic form. The court also refused to award expenses for the e-discovery costs, stating that such costs were not recoverable under a federal statute. One component of the e-discovery costs related to 19 disks containing files that were originally printed by the third-party defendants at a cost of more than $100,000. After this paper production, the defendant requested that these same documents be produced electronically because the printed copies lacked metadata and the electronic files could be more easily searched. The district court granted the request. The third-party defendants then hired a consultant to categorize the disks and redact privileged documents, incurring an additional $182,595.47 in costs. The court declined to award any of the costs relating to the 19 disks. Zenith Elec. Corp. v. WH-TV Broad. Corp., 2004 WL 1631676 (N.D. Ill. July 19, 2004).

Challenging a misdemeanor conviction for harassment by electronic communication, the defendant argued, among other things, that the trial court erred by not granting her a continuance. Specifically, the defendant argued that she was entitled to a continuance because she did not receive e-mails, relied upon by the prosecution, until the day of trial. Defense counsel further argued that it needed the e-mails in order to have an expert evaluate their source before trial. Denying the defendant's motion, the trial court noted that copies of the e-mails were available three days before trial, and that defense counsel should have picked up the copies at the district attorney's office. On appeal, the appellate court also indicated that counsel should not have waited 17 days before the trial to file discovery and inspection-of-evidence motions, and that counsel could have hired an expert even if the e-mails were unavailable for review. In affirming the trial court's decision, the appellate court declared, “the failure to obtain an expert or to obtain the e-mails until the eve of trial can hardly be the fault of the State … [the defendant] was at least partially, if not totally, responsible for their last-minute production.”