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”