Crane on Law by James Crane

Preservation letters have never been as important as they are with the rise of ESI. Now, a preservation letter can frame the discovery obligations of an entire case. As a result, corporate counsel must make sure that there is an understanding of what is being outlined in the letter and make good decisions about what data needs to be preserved.

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In Columbia Pictures, Inc. v. Bunnell, the U.S. Central District Court of California held that a party must produce relevant documents stored temporarily in their computer’s random access memory under Fed. R. Civ. P. 34. This should be no surprise to anyone, if the data is within your control, you’re typically responsible for producing it or explaining why you’re not.

The Rule 37(f) “safe harbor provision” allows for business operations to continue, but is sometimes difficult to interpret, especially when discovery requests are very broad. I always encourage clients to meticulously document all of their ESI-related activity and be very precise with their language in both requesting and responding to requests.

One of the best discussions of how to respond is in Turner v. Resort Condominiums, a case that pre-dates the amendment of the Federal Rules. In Turner, U.S. District Court of the Southern District of Indiana commented about how the parties danced “the familiar minuet” of “overly broad discovery demands…followed by overly broad objections” until “experienced counsel…got down to more serious and specific line-drawing on discovery.” As with many types of disputes, lean on the facts and carefully document every step. Check out Turner, it’s a good read. 

I hope that the era of fearmongering by plaintiff lawyers and e-discovery vendors regarding the amended federal rules is over. At Altep, we never used fear tactics to persuade our clients. We were prepared to meet all of the requirements set out in the Rules and our client’s litigation never missed a beat.

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In National Union Fire Ins. Co. v. Clearwater Ins. Co., the Southern District Court of New York held that backup tapes are not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2) when the cost was $80,000. The requesting party was trying to locate emails related to a settlement and the tapes were for a time period 7 – 22 months after the settlement, so the court reasoned that the potential benefits for the search were outweighed by the cost. (July 2007)

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Without a doubt, one of the greatest changes in litigation practice following the amendment of the Federal Rules has been the increased accountability of attorneys to be responsible for their client’s electronically stored information. A lack of understanding or inability to find data is no longer going to be good enough. U.S. Magistrate Judge Major recently emphasized that point in a powerful way.

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 There are a lot of ways that corporate law departments can maximize their e-discovery dollar. We put together a brief paper detailing five ways. You can find the article here. For posterity, here they are:

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Tyco agreed to pay $2.975B to resolve a class action shareholder lawsuit arising out of ex-CEO Dennis Kozlowski’s alleged accounting fraud. This was the largest securities fraud settlement in history.

Visa, Mastercard, and Diner’s Club agreed to pay $336M to settle the credit card currency conversion consolidated cases alleging that the companies and member banks conspired to fix fees charged for currency conversion when cardholders made purchases overseas.

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Here are a few prominent e-discovery cases that dealt with document retention issues from last year in case you missed them.

One of the most influential in the Tenth Circuit was Judge Shaffer’s opinion in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc. In this case regarding a trademark dispute, the court held that a demand letter inviting negotiations was not explicit enough to trigger an obligation to preserve evidence. However, once the complaint was filed, the defendant’s routine procedure for destroying ESI could not be the basis for claiming that the destroyed data was not “reasonably accessible” and must be provided.

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I get asked so often about where to start with when upgrading or creating a document retention process. Here are a few best practices for starters

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