Archive for January 2015

Applying Proportionality to Preservation, Court Grants Permission to Dispose of Computers

Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR, 2014 WL 5477639 (N.D. Cal. Oct. 29, 2014)

Following an order granting summary judgment in their favor, the “Board Member Defendants” notified the plaintiff that they would no longer contribute to the cost of storing 159 computers, but refused to consent to allowing Plaintiff to dispose of them, arguing that Plaintiff should be required to preserve the computers until “after the Ninth Circuit has ruled on its appeal and any trial has been completed.”  The court declined to compel Plaintiff to bear the costs and burden of continuing to preserve, however, where discovery had closed, where there was no indication that the computers contained relevant information, and where the defendants had “numerous opportunities to test their belief that the computers may have evidentiary value, but [had] refused to act on them.”

This case “involves allegations of wrongdoing by Windrush School’s Board Members and Stone & Youngberg.”  During the litigation, 159 computers were stored at the cost of $500 per month, shared by the parties.  Despite the preservation effort, Plaintiff believed that the computers were unlikely to contain relevant information, based on the statement of Windrush’s attorney that the computers had only been used by teachers and students and on a “limited forensic review of a sample of the machines, which confirmed the accuracy of this representation.”  Notably, “[n]o party ever sought to search the Windrush computers, nor d[id] it appear that any defendant asked for further information about [the vendor’s] forensic review.”  When the court granted summary judgment in favor of the Board Member Defendants (“Defendants”) (and partial summary judgment in favor of another defendant) they announced that they would no longer contribute to the cost of preservation/storage, but also would not consent to the computers’ disposal.  Plaintiff offered to allow the defendants to “examine the computers and take any information they wish[ed], but the Board Member Defendants declined.”  Plaintiff sought an order permitting disposal.

As stated by the court, the issue before it “pertain[ed] solely to whether any party [had] a duty to continue to preserve the Windrush computers pending a potential trial on remand.”  The Defendants’ primary argument in opposition to disposal was that they were “not involved with handling the Windrush computers from the outset of this litigation,” and that they therefore did not have a “clear understanding of the process that [the vendor] employed in reaching its determination that the computers do not likely contain relevant information.”  They further argued that “in the event this case is remanded for trial, the parties have the right to access the original source of evidence for purposes of rebuttal and impeachment.”  Therefore, they argued, preservation should continue until after any appeal was resolved and any trial completed.

Taking up the question, the court reasoned that the preservation obligation pertains to information relevant to the parties’ claims and defenses and that there had “been no showing that the Windrush computers were ever used by likely custodians of relevant information” and thus, “no basis from which to reasonably conclude that the computers contain relevant evidence.”  The court further reasoned that discovery had closed and that Defendants had the opportunity to test their belief that the computers contained relevant information, but failed to do so. 

The court turned next to Fed. R. Civ. P. 26(b)(2), the “proportionality principle,” acknowledging that “this district recognizes that the proportionality principle applies to the duty to preserve potential sources of evidence” and concluding that the burden of preservation in this case “outweigh[ed] the likely benefit of maintaining the computers where there ha[d] been absolutely no showing that they contain relevant evidence.”

Plaintiff’s request for an order permitting disposal of the 159 computers was granted.

A full copy of the court’s order is available here.

State Bar of California Interim Opinion on Attorneys’ Duties in the “Handling of Discovery of [ESI]” – Comment Period Extended

As was previously reported on this blog, here, the California State Bar Standing Committee on Professional Responsibility and Conduct (“COPRAC”) published Proposed Formal Opinion Interim No. 11-0004, addressing “ESI and Discovery Requests,” for public comment in Spring 2014.  At its December meeting, COPRAC revised that opinion in response to public comment and approved an additional 90-day comment period, ending April 9, 2015. 

For more information and for a full copy of the proposed formal opinion, click here.

Keeping You Informed: K&L Gates’ Third Annual “Under the Wire”

e-DAT Partner Julie Anne Halter will speak at K&L Gates’ Third Annual “Under the Wire” CLE Seminar in Durham, NC (with videoconference broadcast in Charlotte) on January 22, 2015.  Julie Anne’s presentation will address the “Latest and Greatest on e-Discovery.”

Other topics to be addressed include:

FDA Inspections

Update on the Affordable Care Act

International Activity: Things That Should Keep a GC Up at Night

The Benefits of International Arbitration for Cross-Border Transactions

Hot Topics in Employment Law

Lawyers and the Pursuit of Happiness (mental health/substance abuse credit)

For more information about this event, click here.

E-Discovery in 2015: Will You Feel The Earth Move Under Your Feet?

By Daniel R. Miller, Bree Kelly

     The civil litigation landscape is constantly changing as new laws are passed, new rules are promulgated, and new opinions are issued.  As in the natural world, some areas are more prone to change than others, and the bedrock of discovery has significantly shifted in recent years.  The rumblings began in earnest in the early part of this century, as judicial opinions began to address the significant challenges posed by the proliferation of electronic information in daily life.  Then, in 2006, “the big one” hit, and the Federal Rules of Civil Procedure were amended to substantially address the discovery of electronically stored information (“ESI”).  Eight years later, the aftershocks of that tremendous shake up continue and new fault lines have begun to emerge, providing clues—and warnings—as to where the next big shifts are likely to occur.  In this article, we will identify some of those areas, including emerging standards of competence in electronic discovery, the pending amendments to the rules of civil procedure, and the continuing evolution of the use of technology in electronic discovery, and beyond.

To read the full article, click here.

2014 ABA Journal Blawg 100: We Won! (And Thanks for Voting!)

We are proud to announce that we received the most votes in the ABA Journal Blawg 100’s Legal Tech category this year.  We were honored to make the list and are very excited to win in our category!

As you may know, we have been blogging on the topic of e-discovery for more than ten years now, and receiving this recognition from our readers is incredibly rewarding.  It is our sincere pleasure to provide this resource and we look forward to continuing this important work in the New Year, and beyond. 

We would also like to say Congratulations to everyone in the 2014 Blawg 100; keep up the fantastic work!

Click here to read more about the ABA Journal’s Annual Blawg 100 list and to see the list of winners and nominees in each category.