Post Process

Everything to do with E-discovery & ESI

Archive for August, 2007

Case Blurb: Zubulake; Sanctions for Destroying Evidence Explained

Posted by rjbiii on August 29, 2007

A party can only be sanctioned for destroying evidence that it had a duty to preserve, and such duty arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

However, a corp. upon recognizing the threat of litigation, need not preserve every shred of paper, every e-mail or electronic document, and every backup tape. Id.

Instead, the duty to preserve extends to any documents or tangible things made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Id.

The duty also extends to documents prepared for those individuals and to information that is relevant to the claims and defenses of any party, or which is relevant to the subject matter involved in the action. Id.

Thus, the duty to preserve extends to those employees likely to have relevant information, i.e. the “key players” in the litigation. Id.

Posted in 2nd Circuit, Case Blurbs, Document Retention, Duty to Preserve, Judge Shira A. Scheindlin, Key Players, Reasonable Anticipation of Litigation, S.D.N.Y, Spoliation | Leave a Comment »

Guideline (D. Kan): Form of Production

Posted by rjbiii on August 29, 2007

Parties and counsel are reminded that, under Fed. R. Civ. P. 34, if the requesting party has not designated a form of production in its request, or if the responding party objects to the designated form, then the responding party must state in its written response the form it intends to use for producing electronically stored information. U.S. Dist. Cts. (Kan), Guidelines for Discovery of Electronically Stored Information.

Posted in 10th Circuit, D. Kan., Discovery Requests, Form of Production, FRCP 34 | Leave a Comment »

ESI Tests: The Seven Factor Zubalake Test for Cost Shifting

Posted by rjbiii on August 29, 2007

Seven Factor Zubulake (Zubulake I, 217 F.R.D. at 322) Test for the cost of producing data from inaccessible sources (an adaptation of the Rowe Test); factors are listed in descending order of importance:

  • The extent to which the request is specifically tailored to discover relevant information;
  • The availability of such information from other sources;
  • The total costs of production compared to the amount in controversy;
  • The total costs of production, compared to the resources available to each party;
  • The relative ability of each party to control costs and its incentive to do so;
  • The importance of the issues at stake in the litigation; and
  • The relative benefits to the parties of obtaining the information.

Application of Seven Factor Test:
The initial question is whether it is appropriate to shift the costs of electronic document production. Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006).
When combined, the first two factors are known as the “marginal utility test.” Id. (citing Zubulake III, 216 F.R.D. at 284).
The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at its own expense. The less likely it is, the more unjust it would be to make the [responding party] search at its own expense. The difference is at the margin.

If the information is available from another source, the marginal utility from the e-discovery is low, and would support cost-shifting. Id.

Application of the first Zubulake factor: The extent to which the request is specifically tailored to discover relevant information.

Π argues that because the court engaged in the “pairing down” process, the document request, as modified by the court, was per se specifically tailored to discover relevant information. The court disagreed. A court may limit the scope of discovery in several ways. Fed. R. Civ. Proc. 26(b)(2) permits the court to limit discovery if the burden or expense of production outweighs its potential benefits, and R. 26(c) permits the issueance of protective orders, including by shifting the costs of unduly burdensome or expensive production. Narrowing a document request pursuant to Rule 26(b)(2) does not preclude the Court from also granting a protective order in the form of cost-shifting for those documents that were ordered to be produced. Id. (citing Zubulake III, 216 F.R.D. at 283).
Even where cost-shifting is granted, the Δ must still pay for the majority of the production b/c of the presumption that the responding party pays for its discovery costs. Id. (citing Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. at 577).
In addition, shifting a share that is too costly may chill the rights of litigants to pursue meritorious claims. Id. (citing Zublake III, 216 F.R.D. 289).

Posted in 2nd Circuit, Back Up Tapes, Cost Shifting, Judge Shira A. Scheindlin, Marginal Utility Test, S.D.N.Y, Undue burden or cost | 1 Comment »

Case Blurb: WESTLB AG, Cost shifting when party inadvisably converts data to inaccessible format

Posted by rjbiii on August 29, 2007

If a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material at a time when it should have anticipated litigation, then it should not be entitled to shift the costs of restoring and searching the data. Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y 2006) (citing Zubulake IV, 220 F.R.D. at 216).

Posted in 2nd Circuit, Back Up Tapes, Case Blurbs, Data Management, Duty to Preserve, Reasonable Anticipation of Litigation, S.D.N.Y, Undue burden or cost | Leave a Comment »

Case Blurb: WESTLB AG; Who bears the cost of production?

Posted by rjbiii on August 29, 2007

There is a presumption “the responding party must bear the expense of complying with discovery requests.” Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978)).
Under Rule 26(c), a district court may issue an order protecting the responding party from undue burden or expense by “conditioning discovery on the requesting party’s payment of the costs of discovery.” Id.
Such an order may be granted only on the motion of the responding party and “for good cause shown.” Id. (citing Fed. R. Civ. Proc. 26(c)).
The Responding party has the burden of proof on a motion for cost-shifting. Id. (citing Zubulake I, 217 F.R.D. at 318).

Posted in 2nd Circuit, Case Blurbs, Cost Shifting, FRCP 26(c), Good Cause, S.D.N.Y, Undue burden or cost | Leave a Comment »

Case Blurb: WESTLB AG; Factors Limiting Discovery Requests

Posted by rjbiii on August 29, 2007

Parties may “obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party”, except where, inter alia, “the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issue.” Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006) (citing Fed. R. Civ. Proc. 26(b)).

Posted in 2nd Circuit, Case Blurbs, Discovery Requests, FRCP 26(b), S.D.N.Y, Scope of Discovery, Undue burden or cost | Leave a Comment »

Corporate Trend of Limiting use of e-mail?

Posted by rjbiii on August 29, 2007

Quad Cities Online has an article describing one company’s limits on email to boost productivity. [HT: Life Hacker]. From the article:

Tired of “cyber indigestion,” U.S. Cellular Vice President Jay Ellison instituted the policy company-wide last year in an effort to curb out-of-control emailing and encourage face-to-face or at least voice-to-voice communication.

The only exception is dealing with customers and even then U.S. Cellular employees are encouraged to pick up the phone and call whenever possible.

The article notes that customers are often pleasantly surprised upon receiving the call. Imagine that, actually talking to a real person! But I wonder if this is part of a larger trend. Obviously, most firms have acceptable use policies that attempt to limit personal use by employees of company property. During a CLE my company gives (on electronic data discovery), the presenter mentioned the example of a company that has completely done away with email (I find that a bit draconian, but whatever).

The dichotomy is quite amazing. IT is moving rapidly toward more distributed and disparate types of data sources. Trends like tele-commuting, the greater us of PDA’s, black boxes in cars, etc. At the same time, corporate policies and the legal world are trying to better manage these data sources for purposes of litigation readiness and limiting exposure to legal liability. The struggle continues.

Posted in Data Management, email, Trends | 1 Comment »

Tools for de-duplicating files from windows directories

Posted by rjbiii on August 29, 2007

While perusing Life Hacker, Post Process ran across these tools for de-duplicating windows files (before collection, not after). They are:

Posted in Data Management, De-Duplication, Tools | Leave a Comment »

Case Blurb:Powers; Standard for whether to allow forensic exam of a hard drive

Posted by rjbiii on August 28, 2007

The standard by which the court determines whether to allow a forensic inspection of the adversary’s computer is provided by Rule 26(b)(2).
Rule 26(b)(2) not only permits but requires the court to curtail discovery efforts in a number of circumstances: if the discovery sought is unreasonably cumulative or duplicative or is attainable from some other source that is more convenient or less burdensome; when the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or when the balance of burden and expense outweighs the information’s likely benefit. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).

Posted in 6th Circuit, Case Blurbs, Computer Forensics, Duty to Preserve, FRCP 26(b), Undue burden or cost, Unreasonably Cumulative, W.D. Mich. | Leave a Comment »