Post Process

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Archive for September 11th, 2007

Case Summary: Powers; Counsel’s impatience with adversary grounds for denial of motion for sanctions

Posted by rjbiii on September 11, 2007

In a case in which a law school was accused of failing to grant a student with visual disabilities reasonable accommodations in compliance with a state act, plaintiff’s counsel’s request, during oral arguments concerning defendant law school’s compliance with a production order issued by the court, that his expert be allowed to examine the school’s work order tracking system was denied by the court. Plaintiff’s counsel had not requested access to the system in his brief. Plaintiff’s counsel had also failed to abide by local and federal rules by making his motion before making a reasonable attempt to confer with defendant. Counsel had sent defense counsel a fax requesting information on September 18, 2006. At 2:34 p.m. on the same day, Plaintiff’s counsel called defense counsel’s office and was told that defense counsel was not in the office. Plaintiff left a voice-mail, and then filed a motion with the court at 4:23 p.m.

The court found that by allowing defense counsel “less than one business day,” that defense counsel had been given an “unreasonable time” in which to respond. Furthermore, Plaintiff’s counsel had “displayed impatience” and had not displayed “a good-faith effort to resolve [this particular] discovery dispute.” This failure, in and of itself, was grounds for denial of the motion and imposition of sanctions. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).

Posted in 6th Circuit, Case Summary, Discovery Requests, Duty to Produce, Sanctions, W.D. Mich. | Leave a Comment »

Is moving potentially relevant data to backup sanctionable?

Posted by rjbiii on September 11, 2007

Is it appropriate to sanction a party who converts data which may be relevant to a litigation to an “inaccessible” format? Maybe.

Court declined to sanction a plaintiff for converting data from an accessible to an inaccessible format, because a party is free to preserve electronic evidence in any format it chooses, including inaccessible formats. Thus, preservation of data, even in an inaccessible form, will not result in spoliation b/c the responding party will be able to produce the electronic evidence by restoring it from an inaccessible format, albeit at a higher cost. Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y 2006).

However, another court found that “permitting the downgrading of data to a less accessible form-which systematically hinders future discovery by making the recovery of the information more costly and burdensome-is a violation of the preservation obligation. Id. (quoting Treppel v. Biovail Corp., 233 F.R.D. 363, 372 n. 4 (S.D.N.Y. 2006).

Posted in 2nd Circuit, Best Practices, Data Management, Duty to Preserve, Reasonably Accessible, Sanctions | Leave a Comment »

Product Roundup for E-Discovery

Posted by rjbiii on September 11, 2007

Computer Weekly discusses some of the products available to help companies manage the e-discovery process:

E-discovery has become the buzzword on everyone’s lips this year, thanks largely to the new US Federal Rules of Civil Procedure (FRCP), which revised guidelines for producing electronic evidence last December. The revision means that companies that fail to produce electronic evidence in court may be granted leniency if they show a good faith effort to both preserve and produce the electronic data.

Nothing surprising here, but the list of products is interesting, even if it isn’t comprehensive. Missing classes of products include edd processing platforms (such as discover-e or Cricket); Review Tools (iConect, Summation, Concordance, File Control). Still, it’s worth taking a look at.

The article also looks at the Electronic Discovery Reference Model (EDRM).

The Electronic Discovery Reference Model (EDRM) project was launched in May 2005 in an attempt to bring some order to the chaos around e-discovery products. Most experts agree that this model of the e-discovery process remains the most complete one and can come in handy when it comes to identifying and evaluating products. The model has six main phases: records management, identification, preservation/collection, processing/review/analysis, production and preservation.

The model is pretty good, although far from perfect. Nevertheless, can be useful to illustrate workflow processes and procedures (and pitfalls).

Posted in Data Management, Discovery, Electronic Discovery Reference Model, Tools | Leave a Comment »

Case Summary: Napster C/R Litigation; Producing Party’s duty to preserve not relieved after suit ends

Posted by rjbiii on September 11, 2007

Court held that a producing party’s obligation to preserve documents was not relieved despite the dismissal of a lawsuit to which it was a party, because counsel for plaintiff’s sent producing party a letter threatening litigation the month following the dismissal, and an executive for the producing party displayed anticipation of that litigation by stating in an email “we know we are going to be sued.” Producing party’s claim that the unequivocal statement in the email was merely a negotiating tactic designed to secure an indemnification provision in a contract did not persuade the court that the statement was unimportant because even if this was true the mere fact that the party was pursuing such indemnification demonstrates there was a reasonable probability of litigation of which the party was aware. In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060 (N. D. Cal. 2006).

Posted in 9th Circuit, Case Summary, Duty to Preserve, Judge Marilyn Hall Patel, N.D. Cal. | Leave a Comment »

Case Summary: Kraft Foods N. Am.; Discovery request for documents over a 7 year period not overly broad

Posted by rjbiii on September 11, 2007

Court ruled that a discovery request seeking documents from January 1, 1999 to [April 7, 2006] did not represent an overly broad temporal scope. Although the “last discriminatory act” for the purposes of the action at bar would have occurred in April 2004, information from the two-years and three-months prior to the April 2002 liability period may be relevant to demonstrate the pattern and practice of discriminatory conduct alleged by Plaintiffs. Moreover, defendants provided no evidence that production of documents for this twenty-seven month period would impose any burden on defendants.

Court ruled “not overly broad” in departmental or organizational scope discovery requests seeking documents relating to “sales representatives” and “region managers” in the Kraft Sales Organization over the objection of the responding party. Responding party had argued that because no plaintiffs had ever held the position of regional manager, individuals in those positions were not similarly situated to Plaintiffs, making the documents irrelevant to the matter at hand. The court disagreed, finding that the requests were not overly broad on their face; that defendant’s lack of assertion to demonstrate that discovery would impose a burden; and that although the title of “region manager” no longer exists, responding party should produce documents of the position regardless of its new title.

Court ruled discovery requests seeking documents for the “Kansas City Region” were not overly broad in geographic scope, because the motives behind employment decisions made by managers at the regional level were relevant to the matter at hand. Because the some of the wrongdoing was alleged to have occurred at a regional level within defendant’s organizational structure, the court found defining the geographic scope of the requests as the Kansas City region is reasonable. Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648 (D. Kan 2006).

Posted in 10th Circuit, Case Summary, D. Kan., Discovery Requests, Duty to Produce, Magistrate Judge David J. Waxse, Overly Broad Request, Scope of Discovery | Leave a Comment »

Case Summary: School Dist. #70; Overly Broad Discovery Request

Posted by rjbiii on September 11, 2007

In a wrongful termination suit, Court disagreed with Plaintiff’s assertion that Defendant School District should have altered their document retention practices because they should have reasonably anticipated litigation in October 2004, because this was before plaintiff took FMLA leave and before the Board decided to replace plaintiff in March 2005. Furthermore, the Board could not have anticipated that all e-mails from that time on would be within the bounds of a discovery request for this particular matter. The court denied plaintiff’s request for production on this and other grounds.

Discovery Request seeking “[a]ll emails with attachments sent or received by anyone at the school since 1-1-97″ found overly broad, would clearly encompass e-mails not relevant to the litigation, and was not enforceable by the court. The court denied the Plaintiff’s request for production on this and other grounds.
Lewis v. School District #70, 2006 WL 2506465 (S. D. Ill).

Posted in 7th Circuit, Case Summary, Discovery Requests, Magistrate Judge Clifford J. Proud, Overly Broad Request, S.D. Ill. | Leave a Comment »

Case Summary: Ponca Tribe Indians; Discovery Request for data in a proprietary format denied

Posted by rjbiii on September 11, 2007

In a case concerning numerous allegations concerning the operation of a carbon black production plant, the court determined that the discovery request of all data maintained by an application named the “Data Historian” imposed an undue burden on the producing party, and was overly broad. Producing party had established its right to object by demonstrating that the expense of providing the information sought outweighed any benefit it might provide requesting party, while the requesting party failed to put forward a sufficient argument their need for the information within the data historian outweighed the burden of production.

The data historian, a proprietary software package not licensed to the requesting party, recorded data from 719 data points in one minute increments. Requesting party had refused producing party’s suggestion the requesting party could, using a key provided by producing party, identify specific data points to review, thereby “greatly reducing the volume of information sought.” Likewise, the requesting party refused to narrow their search by identifying relevant time and date periods, as suggested by the producing party. Requesting party argued that using these narrowing techniques wasn’t feasible, but they “offered no evidence demonstrating the basis for this conclusion.” Therefore, requesting party’s request to image or download the data base from the data historian was denied. However, to the extent that the requesting party express a willingness to purchase the necessary software and pay for the necessary programming, and post a bond suggested by producing party, the court will revisit the issue should the parties still be unable to agree on their own. The Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006).

Posted in 10th Circuit, Case Summary, Discovery Requests, Duty to Produce, Judge Robin J. Cauthron, Scope of Discovery, Undue burden or cost | Leave a Comment »