e-Discovery Docket Sheet

The defendant brought a motion to compel examination of the plaintiff's computer hard drives, contending that the plaintiff was concealing evidence and misrepresenting facts. Although recognizing that a forensic examination may be appropriate on a showing that the opposing party has deleted electronic evidence, the magistrate judge observed, 'a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, safety concerns, and to minimize disruption.' The magistrate judge ultimately denied the defendant's motion, noting that the defendant's unsubstantiated accusations of discovery misconduct did not warrant the remedy of a forensic examination. Advante Int'l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006).

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Fifth Circuit Orders Re-examination For Privilege Claims

In a product-liability litigation, the defendant sought interlocutory appeal and a writ of mandamus of the district court's ruling regarding the defendant's attorney-client privilege claims. Of more than 2 million documents produced in response to the plaintiff's discovery request, the defendant withheld approximately 30,000, claiming attorney-client privilege. After conducting an in camera, document-by-document review of the 30,000 documents, the district court determined that only 491 documents were privileged and ordered the remainder be produced to the plaintiff. On appeal, the court examined only the trial court's review process, rather than the merit of the privilege claim on any single document. The Fifth Circuit found
the district court judge's efforts commendable, but inadequate, and determined that a continuation of the current review process without modification would constitute an abuse of discretion. The Fifth Circuit granted the defendant's motion for a re-examination of 2000 documents, and instructed the defendant to supplement the privilege log and to offer assistance in easing the burden of review on the district court judge. The Fifth Circuit allowed the district court discretion in determining whether more review of the documents would be necessary. In re: Vioxx Prods. Liab. Litig. 2006 WL 1726675 (5th Cir. May 26, 2006).

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Court: Plaintiff May Retain Inadvertently Disclosed e-Mail

In a patent-infringement action, the plaintiff sought an order compelling the defendant's witness to testify about communications in relation to an e-mail inadvertently produced during discovery. Filing a countermotion, the defendant claimed that the e-mail was protected by attorney-client privilege and demand-ed that the document be returned. The court denied the defendant's countermotion, finding that the privilege had been waived after the defendant had repeatedly failed to take steps in securing the return of the e-mail after first learning that the document had been inadvertently disclosed. Noting that the plaintiff had deposed one of the defendant's witnesses about the substance of the e-mail without objection from the defendant in July 2004, the court chided the defendant's counsel for failing to assert a claim of attorney-client privilege at the deposition. The court observed that the substance of the e-mail should have placed the defendant on notice that it had produced a document containing privileged communications seeking legal advice. The e-mail contained attachments specifically labeled 'Confidential-Attorney's Eyes Only' and was addressed to a law firm. Not until February 2005, when the e-mail was introduced again at another deposition, did the defendant assert attorney-client privilege. Still, the defendant waited three months to petition the court for return of the document, and only after the plaintiff refused to return the e-mail brought a motion to compel further testimony. The court determined that the plaintiff was entitled to keep the e-mail and demand further testimony in relation to it. Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006).

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Court Awards Monetary Sanctions for
Failure to  Produce in a Timely Fashion

In this product-liability case, the plaintiffs sought sanctions under FRCP Rule 37 against the defendant for providing false responses to discovery requests, failing to supplement discovery requests, failing to comply with a court order compelling discovery and for withholding a crucial document damaging to the defendant's case. The plaintiffs first learned that the defendant had failed to provide a key document when they examined communications contained in an internal e-mail, produced in response to other discovery requests. Although the defendant produced the document after the plaintiffs specifically requested that it be turned over, the plaintiffs asserted that they were unfairly prejudiced by the document's untimely production. The plaintiffs moved that the court prohibit the defendant from asserting affirmative defenses, in effect granting a default judgment, or alternatively, to issue adverse-inference jury instructions against the defendant. The court, however, found the sanctions requested by the plaintiff to be unwarranted, as the defendants had not withheld the key document willfully or in bad faith. Still, the court observed, 'parties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents.' Finding that the defendant's counsel were under obligation to review all documents in their possession to determine the existence of other potentially relevant undisclosed documents, the court awarded the plaintiff reasonable attorney's fees and expenses incurred as a result the defendant's noncompliance and untimely production. Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006).

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Court Directs Plaintiff To Provide Contents Table or Index

In this case, the plaintiffs produced documents in paper and electronic form, presenting the defendants with a CD-ROM of imaged files, numbered according to the order in which they were scanned. Although the plaintiff did not provide an index or table of contents, it maintained that the imaged documents were formatted so the defendant could perform keyword searches for information. The plaintiffs argued that they had satisfied their Rule 34 obligations by presenting the documents in the manner in which they were maintained in the ordinary course of business, and that they were not required to organize or label the documents to correspond with categories in the defendant's discovery request. However, in recognizing that the documents had been gathered from different locations, the court found that a table of contents was 'reasonably necessary to determine ' from which entity or department the documents have been produced or the type of file in which they are contained.' While the court refused to award attorney fees for delays in discovery, which were 'unavoidable in view of the voluminous nature of the documents in issue,' the court warned the plaintiffs that failure to timely comply with the order could result in future sanctions. Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006).

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e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Melanie Bradshaw, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].

Court Says No To Unsubstantiated
Request for Computer Forensic Examination

The defendant brought a motion to compel examination of the plaintiff's computer hard drives, contending that the plaintiff was concealing evidence and misrepresenting facts. Although recognizing that a forensic examination may be appropriate on a showing that the opposing party has deleted electronic evidence, the magistrate judge observed, 'a party would not be given an unfettered right to conduct its own examination of the opposing party's computers. Rather, a protocol would have to be established to protect legitimate privacy, privilege, safety concerns, and to minimize disruption.' The magistrate judge ultimately denied the defendant's motion, noting that the defendant's unsubstantiated accusations of discovery misconduct did not warrant the remedy of a forensic examination. Advante Int'l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006).

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Fifth Circuit Orders Re-examination For Privilege Claims

In a product-liability litigation, the defendant sought interlocutory appeal and a writ of mandamus of the district court's ruling regarding the defendant's attorney-client privilege claims. Of more than 2 million documents produced in response to the plaintiff's discovery request, the defendant withheld approximately 30,000, claiming attorney-client privilege. After conducting an in camera, document-by-document review of the 30,000 documents, the district court determined that only 491 documents were privileged and ordered the remainder be produced to the plaintiff. On appeal, the court examined only the trial court's review process, rather than the merit of the privilege claim on any single document. The Fifth Circuit found
the district court judge's efforts commendable, but inadequate, and determined that a continuation of the current review process without modification would constitute an abuse of discretion. The Fifth Circuit granted the defendant's motion for a re-examination of 2000 documents, and instructed the defendant to supplement the privilege log and to offer assistance in easing the burden of review on the district court judge. The Fifth Circuit allowed the district court discretion in determining whether more review of the documents would be necessary. In re: Vioxx Prods. Liab. Litig. 2006 WL 1726675 (5th Cir. May 26, 2006).

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Court: Plaintiff May Retain Inadvertently Disclosed e-Mail

In a patent-infringement action, the plaintiff sought an order compelling the defendant's witness to testify about communications in relation to an e-mail inadvertently produced during discovery. Filing a countermotion, the defendant claimed that the e-mail was protected by attorney-client privilege and demand-ed that the document be returned. The court denied the defendant's countermotion, finding that the privilege had been waived after the defendant had repeatedly failed to take steps in securing the return of the e-mail after first learning that the document had been inadvertently disclosed. Noting that the plaintiff had deposed one of the defendant's witnesses about the substance of the e-mail without objection from the defendant in July 2004, the court chided the defendant's counsel for failing to assert a claim of attorney-client privilege at the deposition. The court observed that the substance of the e-mail should have placed the defendant on notice that it had produced a document containing privileged communications seeking legal advice. The e-mail contained attachments specifically labeled 'Confidential-Attorney's Eyes Only' and was addressed to a law firm. Not until February 2005, when the e-mail was introduced again at another deposition, did the defendant assert attorney-client privilege. Still, the defendant waited three months to petition the court for return of the document, and only after the plaintiff refused to return the e-mail brought a motion to compel further testimony. The court determined that the plaintiff was entitled to keep the e-mail and demand further testimony in relation to it. Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006).

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Court Awards Monetary Sanctions for
Failure to  Produce in a Timely Fashion

In this product-liability case, the plaintiffs sought sanctions under FRCP Rule 37 against the defendant for providing false responses to discovery requests, failing to supplement discovery requests, failing to comply with a court order compelling discovery and for withholding a crucial document damaging to the defendant's case. The plaintiffs first learned that the defendant had failed to provide a key document when they examined communications contained in an internal e-mail, produced in response to other discovery requests. Although the defendant produced the document after the plaintiffs specifically requested that it be turned over, the plaintiffs asserted that they were unfairly prejudiced by the document's untimely production. The plaintiffs moved that the court prohibit the defendant from asserting affirmative defenses, in effect granting a default judgment, or alternatively, to issue adverse-inference jury instructions against the defendant. The court, however, found the sanctions requested by the plaintiff to be unwarranted, as the defendants had not withheld the key document willfully or in bad faith. Still, the court observed, 'parties cannot be permitted to jeopardize the integrity of the discovery process by engaging in halfhearted and ineffective efforts to identify and produce relevant documents.' Finding that the defendant's counsel were under obligation to review all documents in their possession to determine the existence of other potentially relevant undisclosed documents, the court awarded the plaintiff reasonable attorney's fees and expenses incurred as a result the defendant's noncompliance and untimely production. Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006).

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Court Directs Plaintiff To Provide Contents Table or Index

In this case, the plaintiffs produced documents in paper and electronic form, presenting the defendants with a CD-ROM of imaged files, numbered according to the order in which they were scanned. Although the plaintiff did not provide an index or table of contents, it maintained that the imaged documents were formatted so the defendant could perform keyword searches for information. The plaintiffs argued that they had satisfied their Rule 34 obligations by presenting the documents in the manner in which they were maintained in the ordinary course of business, and that they were not required to organize or label the documents to correspond with categories in the defendant's discovery request. However, in recognizing that the documents had been gathered from different locations, the court found that a table of contents was 'reasonably necessary to determine ' from which entity or department the documents have been produced or the type of file in which they are contained.' While the court refused to award attorney fees for delays in discovery, which were 'unavoidable in view of the voluminous nature of the documents in issue,' the court warned the plaintiffs that failure to timely comply with the order could result in future sanctions. Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006).

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e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Melanie Bradshaw, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].