e-Discovery Docket Sheet

In an action based on racial discrimination allegations, the plaintiffs requested hard copy and electronic records, and issued interrogatories with questions “specifically designed to discover the nature, extent, and location of electronically stored records, the [d]efendants' IT capabilities, the nature of archived data, e-mail, and records retention policies.” Based on concerns about performing pre-production privilege review, the defendant claimed undue burden and expense. Referencing the proposed Federal Rules of Civil Procedure amendments, the court declared that both parties had a duty to negotiate a reasonable discovery plan and present the plan to the court. The court asserted, “[t]he days when the requesting party can expect to 'get it all' and the producing party to produce whatever they feel like producing are long gone … electronic discovery is not played on a level field. The plaintiff typically has relatively few electronically stored records, while the defendant often has an immense volume of it. In such cases, it is incumbent upon the plaintiff to have reasonable expectations as to what should be produced by the defendant.” The court ordered the parties to meet and confer within 30 days about e-discovery matters, including discovery scope and issues relating to privilege review. After that meeting, the court indicated it would conduct a follow-up hearing to discuss those issues. Hopson v. Mayor and City Council of Baltimore, 2005 WL 3157949 (D.Md. Nov. 22, 2005).

The plaintiffs sought default judgment or an adverse-inference instruction based on the defendant's failure to preserve relevant documents relating to underlying data, calculations and drafts of relevant documents. Specifically, the plaintiffs argued that the defendant's document-retention policy allowed for destruction of these essential documents and data. Despite being unable to locate and produce many of these documents, the defendant claimed that it had met its preservation obligations. In evaluating the defendant's document-retention handling, the court noted that the defendant was not obligated to preserve “every scrap of paper.” The court, however, stated that the defendant should have implemented a comprehensive document-retention policy to ensure that relevant documents were retained and should have distributed that policy to its employees. The court found that the defendant did not comply with these requirements and determined that the appropriate remedy was to preclude the defendant from cross-examining the plaintiffs' financial expert at trial. In re Old Banc One Shareholders Sec. Litig., 2005 WL 3372783 (N.D. Ill. Dec. 8, 2005).

Court Refuses to Sanction Defendant
For Failing to Produce “e-Mail Envelope”

The plaintiff, an emergency-room physician, alleged that the defendant, an insurance company, failed to produce an e-mail that contained an investigative report related to an insurance dispute. The plaintiff requested an adverse-inference instruction as a sanction for the alleged non-production. At a hearing, one of the defendant's employees testified that if the e-mail had contained substantive information, a copy would have been placed in the claim file and produced during discovery. The employee further testified that it would have been unusual for substantive information to be sent in an e-mail, as such information was typically attached in a memorandum and merely transmitted by e-mail. Thus, the defendant argued that the e-mail was merely an “envelope” for the substantive report ' which was already previously produced to the plaintiff ' and not subject to the discovery request. Citing Zubulake, the court agreed with the defendant and stated, “[A] corporation is not required to preserve 'every shred of paper, every e-mail or electronic document, and every backup tape' because to require such would 'cripple large corporations … that are almost always involved in litigation'.” The court found that the e-mail was merely an “e-mail envelope” and contained no substantive information. Additionally, the court declared that even if the non-production was improper, the plaintiff failed to demonstrate that the e-mail would have been favorable to the plaintiff. Holt v. Northwestern Mut. Life Ins. Co., 2005 WL 3262420 (W.D.Mich. Nov. 30, 2005).

In a lawsuit relating to natural gas price-fixing, the plaintiffs sought to compel production of published trade data from two non-parties. The non-parties objected, arguing, inter alia, that producing the information would be unduly burdensome. The court found that the subpoena was not unduly burdensome with respect to one of the non-parties, and noted that the non-party had already produced redacted and un-redacted electronic versions of requested spreadsheets to the government in connection with a criminal matter. The court stated: “While those spreadsheets themselves will not satisfy plaintiffs' subpoenas here, they do show the [non-party] can produce this information in electronic format and still redact information about companies other than the target sources.” The court also pointed out that the non-party had an outside document-management firm overseeing the production and that the plaintiff had agreed to pay for associated costs. The other non-party claimed that some of the historical data sought was located on “old” and “antiquated individual computers.” In addressing this issue, the court required the parties to use a sampling protocol, “perhaps searching one of the 'old' computers, with leave to re-visit the burden vs. utility question based on information from that process.” In re Natural Gas Commodity Litig., 2005 WL 3036505 (S.D.N.Y. Nov. 14, 2005).

Court Orders Parties To Meet and Confer