Crane on Law by James Crane

So many of my clients in corporate law departments are so busy - it is a real challenge to keep up with the latest legal developments. I am always looking for useful resources to pass along. One of the best resources regarding the Amended Federal Rules related to Electronic Discovery is the Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information (“ESI”).

So many e-discovery vendors have chosen to view the Amended Federal Rules as a statutory boogeyman. By contrast, I see them as an important step toward clarity and uniformity in the execution of discovery in a digital world. So, when I read that the purpose of the Protocol is “to facilitate the just, speedy, and inexpensive conduct of discovery involving ESI in civil cases,” I am nodding in agreement. As a defense attorney that has seen his share of overly-broad discovery requests, I am firmly convinced that the most important rule in the Federal Rules of Civil Procedure is Rule 1, which mandates that all of the Rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.”

The Protocol includes a useful glossary of ESI terms and covers such topics as planning and carrying out the Rule 26 Conference of Parties, the treatment of metadata, and clawback provisions. It goes into enough detail to be quite useful, but at 29 pages in length, it’s not like reading a textbook or spending 8 hours in a CLE. You can find the Protocol at:

http://www.mdd.uscourts.gov/news/news/ESIProtocol.pdf.

As always, I’m interested in hearing about whether you find this resource useful, and what other resources you like to use. Feel free to contact me, I’d like to hear from you.

There’s been another significant Class Action Fairness Act holding regarding when an action is “commenced.” A party argued in Bush v. Cheaptickets, Inc., that an action is “commenced” on the date it is removed to federal court. Judge Bybee, writing for a unanimous panel, rejected the argument, calling it “nonsensical, since every action that could be removed must have been previously commenced.” The alternative argument that an action was commenced when process was served was also rejected as having “no basis in the Act or the statutory scheme for this claim.” This holding is consistent with the Seventh and Tenth Circuit holdings rejecting that the date of removal should be used for determining “commenced” pursuant to CAFA.

On the eve of Thanksgiving, I’m thankful for all of the relationships in my life, with my family, friends, colleagues, and clients. It has been a great year with many outstanding experiences. Speaking of experience…

Think about what goes through your mind as a legal professional when a potential client inquires whether an attorney or paralegal with little or no experience can handle a legal matter as well as an experienced practitioner. Without a doubt, you feel like I do. There is no substitute for experience.

Over the years, there is less and less that will surprise an experienced paralegal or attorney. So much of the legal profession must be learned by doing, and cannot possibly be picked up in a classroom. As a client, it can be very costly to be part of the “learning curve.”

This is true in the litigation support business as well. As a younger practicing attorney, I didn’t pay much attention to the identity of the litigation support vendor. After a few episodes of heartburn caused by missed deadlines or paying twice for the same job, my view changed. Especially in light of the amended federal rules and the emphasis on a defensible process, a reliable litigation support partner is a crucial component in the execution of a case. Many of our best relationships with corporate clients resulted from Altep repairing the mistakes of other vendors and meeting deadlines.

The litigation support industry has changed dramatically in the last year, with literally hundreds of startups and companies with a foundation in other industries jumping into the fray. However, the axiom still applies: Experience Matters. My advice is to be very careful when selecting your partner - there is a tremendous difference between 10 years' experience, and 10 minutes' experience. I’m happy to talk with you about some of the important criteria to look for in a litigation support partner. You can also check out the Sedona Conference’s white paper regarding the selection of a litigation support vendor at http://www.thesedonaconference.org/dltForm?did=RFP_Paper.pdf.

For the record, Altep has been around since 1994.

In United Med. Supply Co., Inc. v. United States, the United States Court of Federal Claims imposed sanctions against the United States based upon its “reckless disregard” of its duty to preserve relevant evidence. The court found that over an extended period of time, the government regularly destroyed documents, and mischaracterized the extent of its efforts to locate responsive documents and prevent spoliation.

The government argued that bad faith was required before spoliation sanctions could be imposed, presumably based on F.R.C.P. 37’s “safe harbor” provision. Rule 37 provides that “absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.”

The court rejected the argument that bad faith was required and instead focused on the spoliation conduct and the harm it caused. It noted that “repeated acts of gross negligence, particularly if accompanied by inaccurate representations to the court that serve to mask and perpetuate the spoliation, can be met with the same or a more severe sanction than a single act of bad faith.”

This case can serve as an object lesson for us all: corporate clients and their partner attorneys must maintain thorough and up-to-date awareness of what is happening with their electronic information systems, and must make sure that all litigation holds are being properly executed at the user level. The affirmative burden is going to be on counsel to possess a deep understanding of and control over the client’s relevant data. Of course, at Altep, we encourage our partners to be proactive prior to and at the onset of litigation. Nothing is more reassuring than knowing where all of the necessary data resides, having meaningful collaboration with the key personnel required to preserve the data, and going into the meet and confer with all of the answers.

The Indiana Supreme Court has issued an Order Amending Rules of Trial Procedure that mirrors the amended Federal Rules of Civil Procedure and accounts for electronically stored information. The state rules are set to go into effect on January 1, 2008. You can check it out here: http://www.in.gov/judiciary/orders/rule-amendments/2007/trial-091007.pdf

In Lawson v. Sun Microsystems, Inc. (S.D. Ind. Sept. 4, 2007), the plaintiff in an action for an unpaid commission sought an order compelling defendant to provide documents in their native format to comply with FRCP 34 (b) (ii). The defendant provided hard copy documents in its production and argued that was a “reasonably usable” form as allowed under the amended Rules. Defendant alleged that plaintiff had not specified any particular form of production in his request.

The Lawson court held that plaintiff put defendant on notice that he was seeking production in an electronic format in a letter several months prior to defendant’s hard copy production. Because the defendant never objected to that request, the court concluded that the production must be in an electronic format.

The first thing that comes to my mind is, How much did this cost the corporate defendant? The primary change in discovery following the amendment of the Rules is that corporate defendants must act very quickly to consider and account for every detail related to electronically stored information. Counsel must examine and negotiate all of the preliminary steps involved in the early stages of discovery. You can bet that plaintiff counsel will seek out any opportunity to take advantage of any item that is overlooked.

I’m often asked about the status of electronic discovery rules in various state courts and how quickly the amended Federal Rules regarding ESI are likely to be adopted. The answer is a mixed bag, depending on the state. Some states were ahead of the Federal Rules (Texas and Mississippi). Other states have enacted e-discovery provisions to their state rules that are similar to the Federal Rules ( Arizona, Indiana, Idaho, Louisiana, New Jersey, Minnesota, Montana, New Hampshire, and Utah). Thirteen other states are in the process of enacting e-discovery rules, the exact terms of which remain to be seen (Alaska, Florida, Illinois, Iowa, Kansas, Maryland, Nebraska, New Mexico, Ohio, Tennessee, Virginia, Washington, and the District of Columbia).

If your state is not listed here…then I don’t know of any actions being taken to update the e-discovery rules. If you hear something, let me know.

I'll look at specific state amendments in more depth in future postings. If I don’t get to your state quickly enough, shoot me an email and I’ll pass along the latest information I have.

I have been involved with many debates among attorneys representing corporate defendants about the best way to represent e-mail conversations on a privilege log. Effective corporate counsel will recognize that entries on a privilege log must be detailed and consistent enough to withstand the scrutiny of opposing counsel and the bench. The real question surrounds how particular material should be treated, for example, when a communication originally is not privileged, but subsequent discussion in the e-mail thread invokes a claim for privilege. There is authority that requires itemization of each separate e-mail within a thread. Just recently, however, the Northern District Court of Illinois had a different interpretation of FRCP 26(b)(5)(A).

In Muro v. Target Corp., “Muro II” (N.D. Ill. Nov. 2, 2007), the District Court overruled a magistrate judge’s decision that defendants waived privilege on documents in an “inadequate” privilege log because they did not list separate entries for every e-mail within an e-mail thread. The Court stated that it understood Upjohn Co. v. United States (449 U.S. 383 (1981)), “to mean that even though one e-mail is not privileged, a second e-mail which forwards that prior e-mail to counsel might be privileged in its entirety.”

The end result is that the Muro Court supports the position that a party can withhold an e-mail forwarding material to counsel as well as the forwarded material that would not have a claim for privilege on its own. Part of the reasoning is that the otherwise not-privileged material will be disclosed separately in the data population. I, for one, support this holding wholeheartedly. A client that takes a document to counsel for review, should be presumed to be seeking legal advice, and should not have to disclose the details surrounding such a request.

As any proud legal professional knows, it is up to us to keep Latin alive. Here are a few phrases I've selected - brush up on your Latin, and use them as a guide for the upcoming month. Amaze your friends, impress your colleagues...I think it qualifies as both fun and educational.

Additionally, I've decided to express my long-standing fascination with astrology by providing you with an exciting new feature of this blog: the utterly salient, indispensible and frequently poignant Litigator's Horoscope to Live By. Enjoy ~

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