e-Discovery Docket Sheet

The plaintiff alleged during a patent-infringement case discovery dispute that it inadvertently produced more than 500 privileged e-mails and made a motion for their return. The e-mails were identified during document review as privileged, deleted from the Lotus Notes DVD and submitted to the plaintiff's outside e-discovery vendor for final production processing. Because of the Lotus Notes application's nature, the plaintiff claimed that the privileged e-mails unknowingly remained in a larger subfolder that the vendor processed, and were ultimately produced to the defendant. In an earlier decision on this matter, the magistrate judge ordered that the privileged documents be returned because the plaintiff had not waived any privilege. The magistrate reasoned that the privileged e-mails were embedded in metadata and that the privileged information was 'not apparent on the face of the documents.' The magistrate found, therefore, that the defendant should have reasonably known that the retrieved e-mails were not intended for disclosure. The defendant objected to the magistrate's ruling and appealed to the district court judge. The district court judge reviewed the magistrate's decision de novo and found that the magistrate had based his conclusion on a misunderstanding of fact, because the magistrate ruled that the plaintiff was unable to detect the error before production. In its briefings before the district judge, however, the plaintiff admitted that the inadvertent production of privileged documents was, in fact, apparent on the face of the documents because they had been Bates numbered and stamped as confidential. Because the magistrate based his decision on a critical misunderstanding of this fact, the district court judge remanded the case to the magistrate for a reassessment of whether the plaintiff preserved the privilege and was thus entitled to their return. The district judge also evaluated whether the plaintiff waived its privilege by producing 37 non-Lotus Notes documents that were marked as 'unreadable' during document review. Affirming the magistrate's ruling that privilege had been waived, the court stated that 'turning over unintelligible or unreadable documents to an adversary evidences a lack of reasonable precaution.' Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007).

In a breach-of-contract claim, the plaintiff moved the court to order sanctions against the defendant for discovery misconduct. The plaintiff requested e-mail and documents from the defendant related to its dealings with competitors in the field. The defendant vehemently denied the existence of any e-mails or agreements with third parties, and refused to search its systems or archived databases. The plaintiff obtained e-mail records from the third-party competitors and discovered that the defendant had communicated and contemplated agreements with the third-party competitors. The plaintiff argued that sanctions of $317,000 should be awarded to cover the plaintiff's fees and expenses in bringing the discovery motions. The defendant argued that the plaintiff's claims were 'merely a boy crying wolf, unnecessarily taking up the Court's time on baseless accusations.' The court agreed with the plaintiff and issued sanctions because the documents were material to the plaintiff's case, finding the defendant's discovery compliance 'to be dilatory and inadequate.' The court stated that the case was filed almost two years ago and that the defendant 'has yet to run appropriate searches on its archived database for responsive documents, a search that should have been completed long ago.' The court awarded the plaintiff $54,000 for its fees and costs related to bringing the motion to compel and issued sanctions of $20,000. Claredi Corp. v. SeeBeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007).

In a suit alleging fraud, breach of fiduciary duty, breach of contract and conversion inter alia, the plaintiff moved the court to compel the discovery of e-mails relating to the suit. In a previous electronic-document production, there were unexplained time gaps that, the plaintiff argued, suggested that the defendant hadn't done a complete and accurate search. The defendant argued that he would be willing to submit his hard drive for imaging by the plaintiff, but that he would not endure the costs of production. After supplemental submissions by the parties regarding the extent of the search, the court determined that the defendant searched only two of the five places where e-mail evidence might be found and that this was not a sufficient search for relevant electronically stored information (ESI). The court also ruled that the defendant must endure the costs of producing relevant ESI contained on his hard drive, citing the new Federal Rules of Civil Procedure. The court stated that accessible data must be produced at the cost of the producing party and that 'cost-shifting does not even become a possibility unless there is first a showing of inaccessibility.' It cannot be argued, stated the court, that 'a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary.' Peskoff v. Faber, 2007 WL 530096 (D.D.C. Feb. 28, 2007).

District Court Reviews Orders on
Inadvertent Privileged e-Mail Production

The plaintiff alleged during a patent-infringement case discovery dispute that it inadvertently produced more than 500 privileged e-mails and made a motion for their return. The e-mails were identified during document review as privileged, deleted from the Lotus Notes DVD and submitted to the plaintiff's outside e-discovery vendor for final production processing. Because of the Lotus Notes application's nature, the plaintiff claimed that the privileged e-mails unknowingly remained in a larger subfolder that the vendor processed, and were ultimately produced to the defendant. In an earlier decision on this matter, the magistrate judge ordered that the privileged documents be returned because the plaintiff had not waived any privilege. The magistrate reasoned that the privileged e-mails were embedded in metadata and that the privileged information was 'not apparent on the face of the documents.' The magistrate found, therefore, that the defendant should have reasonably known that the retrieved e-mails were not intended for disclosure. The defendant objected to the magistrate's ruling and appealed to the district court judge. The district court judge reviewed the magistrate's decision de novo and found that the magistrate had based his conclusion on a misunderstanding of fact, because the magistrate ruled that the plaintiff was unable to detect the error before production. In its briefings before the district judge, however, the plaintiff admitted that the inadvertent production of privileged documents was, in fact, apparent on the face of the documents because they had been Bates numbered and stamped as confidential. Because the magistrate based his decision on a critical misunderstanding of this fact, the district court judge remanded the case to the magistrate for a reassessment of whether the plaintiff preserved the privilege and was thus entitled to their return. The district judge also evaluated whether the plaintiff waived its privilege by producing 37 non-Lotus Notes documents that were marked as 'unreadable' during document review. Affirming the magistrate's ruling that privilege had been waived, the court stated that 'turning over unintelligible or unreadable documents to an adversary evidences a lack of reasonable precaution.' Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007).

In a breach-of-contract claim, the plaintiff moved the court to order sanctions against the defendant for discovery misconduct. The plaintiff requested e-mail and documents from the defendant related to its dealings with competitors in the field. The defendant vehemently denied the existence of any e-mails or agreements with third parties, and refused to search its systems or archived databases. The plaintiff obtained e-mail records from the third-party competitors and discovered that the defendant had communicated and contemplated agreements with the third-party competitors. The plaintiff argued that sanctions of $317,000 should be awarded to cover the plaintiff's fees and expenses in bringing the discovery motions. The defendant argued that the plaintiff's claims were 'merely a boy crying wolf, unnecessarily taking up the Court's time on baseless accusations.' The court agreed with the plaintiff and issued sanctions because the documents were material to the plaintiff's case, finding the defendant's discovery compliance 'to be dilatory and inadequate.' The court stated that the case was filed almost two years ago and that the defendant 'has yet to run appropriate searches on its archived database for responsive documents, a search that should have been completed long ago.' The court awarded the plaintiff $54,000 for its fees and costs related to bringing the motion to compel and issued sanctions of $20,000. Claredi Corp. v. SeeBeyond Tech. Corp., 2007 WL 735018 (E.D. Mo. Mar. 8, 2007).

In a suit alleging fraud, breach of fiduciary duty, breach of contract and conversion inter alia, the plaintiff moved the court to compel the discovery of e-mails relating to the suit. In a previous electronic-document production, there were unexplained time gaps that, the plaintiff argued, suggested that the defendant hadn't done a complete and accurate search. The defendant argued that he would be willing to submit his hard drive for imaging by the plaintiff, but that he would not endure the costs of production. After supplemental submissions by the parties regarding the extent of the search, the court determined that the defendant searched only two of the five places where e-mail evidence might be found and that this was not a sufficient search for relevant electronically stored information (ESI). The court also ruled that the defendant must endure the costs of producing relevant ESI contained on his hard drive, citing the new Federal Rules of Civil Procedure. The court stated that accessible data must be produced at the cost of the producing party and that 'cost-shifting does not even become a possibility unless there is first a showing of inaccessibility.' It cannot be argued, stated the court, that 'a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary.' Peskoff v. Faber, 2007 WL 530096 (D.D.C. Feb. 28, 2007).