Post Process

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Archive for October 4th, 2007

Guidelines (D. Kan.) for topics to discuss at 26(f) meet and confer

Posted by rjbiii on October 4, 2007

During the [26(f)] conference, the parties should confer regarding the following matters:

  • [ESI] in general. Counsel should attempt to agree on steps the parties will take to segregate and preserve [ESI] in order to avoid accusations of spoliation.
  • E-mail information. Counsel should attempt to agree on the scope of e-mail discovery and e-mail search protocol.
  • Deleted information. Counsel should attempt to agree on whether responsive deleted information still exists, the extent to which restoration of deleted information is needed and who will bear the costs of restoration.
  • Embedded data and metadata. Embedded data typically refers to draft language, editorial comments, and other deleted matter retained by computer programs. Metadata typically refers to information describing the history, tracking, or management of an electronic file. The parties should discuss at the [conference] whether embedded data and metadata exist, whether it will be requested or should be produced, and how to handle determinations regarding privilege or protection of trial preparation materials.
  • Back-up and archival data. Counsel should attempt to agree on whether responsive back-up and archival data exists, the extent to which back-up and archival data is needed, and who will bear the cost of obtaining such data.
  • Format and media. Counsel should attempt to agree on the format and media to be used in the production of [ESI].
  • Reasonably accessible information and costs. The volume of, and ability to search, [ESI] means that most parties discovery needs will be satisfied from reasonably accessible sources. Counsel should attempt to determine if any responsive [ESI] is not reasonably accessible, i.e., information that is only accessible by incurring undue burdens or costs. If the responding party is not searching or does not plan to search sourced containing potentially responsive information, it should identify the category or type of such information. If the requesting party intends to seek discovery of [ESI] from sources identified as not reasonably accessible, the parties should discuss:
    • The burdens and costs of accessing and retrieving the information;
    • The needs that may establish good cause for requiring production of all or part of the information, even if the information sought is not reasonably accessible; and
    • Conditions on obtaining and producing this information such as scope, time and allocation of cost.
  • Privileged or trial preparation materials. Counsel should attempt to reach an agreement regarding what will happen in the event privileged or trial preparation materials are inadvertently disclosed. If the disclosing party inadvertently produces privileged or trial preparation materials, it must notify the requesting party of such disclosure. After the requesting party is notified, it must return, sequester, or destroy all information and copies and may not use or disclose this information until the claim of privilege or protection as trial preparation materials is resolved.
    • The parties may agree to provide a “quick peek,” whereby the responding party provides certain requested materials for initial examination w/o waiving any privilege or protection.
    • The parties may also establish a clawback agreement, whereby materials that are disclosed w/o intent to waive privilege or protection are not waived and are returned to the responding party, so long as the responding party identifies the materials mistakenly produced
    • Other voluntary agreements should be considered as appropriate. The parties should be aware that there is an issue of whether such agreements bind third parties who are not parties to the agreements.
  • Duty to meet and confer when requesting [ESI] from non-parties (Fed. R. Civ. P. 45). Parties issuing requests for electronically stored information from non-parties should attempt to informally meet and confer with the non-party (or counsel, if represented). During this meeting, counsel should discuss the same issues with regard to requests for [ESI] that they would with opposing counsel as set forth ..above.

U.S. Dist. Cts. (Kan), Guidelines for Discovery of Electronically Stored Information. [pdf]

Posted in 10th Circuit, D. Kan., FRCP 26(f), Meet and Confer | Tagged: | Leave a Comment »

Qualcomm mess ‘contaminates’ Day Casebeer partner

Posted by rjbiii on October 4, 2007

We posted an extensive discussion of the Qualcomm case in our second installment of e-discovery pitfalls. Now, law.com posts an article stating a Day Casebeer partner is “highly contaminated.”

In the fallout from a high-stakes discovery meltdown involving Qualcomm Inc., Day Casebeer Madrid & Batchelder partner Lee Patch has emerged highly contaminated.

According to fresh declarations filed Wednesday, Patch signed off on a junior Day Casebeer partner’s decision to withhold 21 potentially damaging e-mails from Qualcomm’s litigation opponent, Broadcom Corp.

But when the trial judge asked Patch about the e-mails days later, Patch created the impression he did not know they existed, his declaration said. Patch also told the judge that neither he, nor his colleagues, had made any determination about whether the e-mails should be turned over.

If you don’t think this is serious, take some time and read EAT WHAT YOU KILL, by Milton Reagan, Jr., describing the fall (and incarceration) of a prominent N.Y. state bankruptcy attorney, for basically lying to the court (by omission).
Judges hate it if they think they’re being lied to. No allegations of misconduct have been proven, and everyone deserves due process, so this isn’t to say that Mr. Patch or his associates has been proven to acting unethically or unlawfully. To continue:

Bier and Mammen told Patch they did not believe the e-mails were responsive. Patch concurred — but he never read the e-mails himself, his declaration says.

Day Casebeer therefore did not notify Broadcom of the e-mails. But 10 days later, a Qualcomm employee mentioned them on the stand during cross-examination.

Ultimately over 200,000 pages of relevant documents were found that hadn’t been produced. This seems to be an extreme case, but what it does illustrate (or will illustrate, should serious sanctions be the result result) is that in this age of computer forensics, non-deleted deleted files, and easy distribution, it isn’t worth the risk for attorneys to conspire to conceal evidence, no matter how harmful it may be for the client.

Posted in Articles, Discovery, Duty to Produce | Tagged: , | Leave a Comment »