Post Process

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Archive for June 17th, 2008

Case Blurb: R & R Sails; ‘honest mistake’ does not substantially justify failure to produce database records

Posted by rjbiii on June 17, 2008

[Producing Party’s] production of electronically-stored claim log entries on January 8, 2008 demonstrate that Defendant had made incorrect certifications to [Requesting Party] as well as representations to the Court-that [Producing Party’s] production of discovery was complete.

Sanctions under Rule 26(g) must be issued unless violation of the rule was “substantially justified.” [Requesting Party] claims substantial justification for maintaining the position that no claim log was in [Producing Party’s] possession, based on Lombardo’s misunderstanding of the discovery being requested of [Producing Party]. According to [Requesting Party], [Producing Party’s employee] Lombardo failed to recognize that the AEGIS database that he entered notes into contained the “daily activity logs or telephone records” that [Requesting Party] had been requesting.

Lombardo has been an insurance adjuster for twenty-six years and explains that he did not associate the AEGIS database with the claim file that he maintains because “[t]he AEGIS computer system records are kept on a computer system that is separate from my file materials and I do not have a practice of printing them out to put in my file.” [The Producing Party] argues that this “honest mistake” substantially justifies the incorrect certifications made to [Requesting Party], as well as the false declaration provided to [the Requesting Party] in response to this Court’s Order of November 29, 2007. However, to give meaning to the certifications provided on discovery responses, Rule 26(g) requires attorneys or parties to sign their responses “after a reasonable inquiry.” Evidence of such an inquiry prior to January 2007 may provide this Court with justification for the incorrect certifications provided to [the Requesting Party]. Instead, this Court is presented with evidence that Lombardo was maintaining a claim log on his own computer using the AEGIS system while failing to recognize that this log was the same “record/log” being requested by [the Requesting Party]. Lombardo entered notes of a communication with counsel into the AEGIS system on November 16, 2007, immediately prior to counsel’s representation to this Court that such a system was not possessed by [the Producing Party] and close in time to his signing a declaration that no such notes are maintained. The Court cannot find that a reasonable inquiry was made into whether [Producing Party] possessed discovery responsive to [Requesting Party’s] requests, and therefore the Court does not find [Requesting Party’s] incorrect certifications to be substantially justified.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 ) (internal citations removed)

Posted in 9th Circuit, Attorney Liability, Case Blurbs, Discovery Requests, Duty to Produce, FRCP 26(g), Magistrate Judge Louisa S. Porter, S.D. Cal. | Tagged: , , , , , , | Leave a Comment »

Case Blurb: R & R Sails; FRCP 26(g) Explained

Posted by rjbiii on June 17, 2008

Federal Rule of Civil Procedure 26(g) requires that every discovery response be signed by an attorney and the signature “certifies that to the best of the persons’s knowledge, information, and belief formed after a reasonable inquiry” that the response is complete and correct. This rule is enforced by a mandatory sanction under Rule 26(g)(3), which reads:
If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney’s fees, caused by the violation.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 )

Posted in 9th Circuit, Attorney Liability, Case Blurbs, FRCP 26(g), Magistrate Judge Louisa S. Porter, S.D. Cal., Sanctions | Tagged: , , , , , , | Leave a Comment »

Case Blurb: R & R Sails; The term ‘document’ includes ESI

Posted by rjbiii on June 17, 2008

[Requesting Party’s] first Request for Production of Documents, served upon [Producing Party] on July 13, 2007, provided a boilerplate definition of “document” which did not provide clear notice that [Requesting Party] sought discovery from electronic sources. However, the discovery of documents “applies to electronic data compilations,” as announced by the Advisory Committee Notes to the 1970 Amendments to Federal Rule of Civil Procedure 34.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *4 (S.D. Cal. Apr. 18, 2008 )

Posted in 9th Circuit, Case Blurbs, FRCP 34, Magistrate Judge Louisa S. Porter, S.D. Cal. | Tagged: , , , , , , | Leave a Comment »

Case Blurb: R&R Sails; Purpose of FRCP 26(f)

Posted by rjbiii on June 17, 2008

In 2006, Federal Rule of Civil Procedure 26(f) was amended “to direct the parties to discuss discovery of electronically stored information during their discovery-planning conference.”

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *4 (S.D. Cal. Apr. 18, 2008 )

Posted in 9th Circuit, Case Blurbs, FRCP 26(f), Magistrate Judge Louisa S. Porter, S.D. Cal. | Tagged: , , , , , , | Leave a Comment »

Case Blurb: Perfect Barrier; “native” e-mail format production appropriate

Posted by rjbiii on June 17, 2008

[Producing Party] produced the emails in electronic form on an disc that is computer accessible. Such discovery is clearly considered electronic discovery. Under Fed.R.Civ.P. 34(b)(2)(E)(ii),
[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
[Requesting Party] did not request that the emails be produced in a particular form, yet [Requesting Party] now asks this Court to force [Producing Party] to produce the electronic emails as Static Images with a bates-number identifier. [Producing Party] objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.

[Producing Party] has already produced the emails on a disc in Native format. [Requesting Party] maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires [them] to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for [Requesting Party] to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If [Requesting Party] wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. [Requesting Party] can access, examine, and even print the communications. While [Requesting Party] may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with [Requesting Party]. [Producing Party] complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008 )

Posted in 7th Circuit, Case Blurbs, Cost of Discovery, Cost Shifting, Discovery Requests, Duty to Produce, email, Form of Production, FRCP 34, FRCP 34(b), Magistrate Judge Christopher A. Nuechterlein, N.D. Ind. | Tagged: , | Leave a Comment »

Case Blurb: Perfect Barrier; Care needed in drafting a Protective Order

Posted by rjbiii on June 17, 2008

Requesting party submitted search terms to producing party, who executed the searches, and then produced the e-mails returned. The Producing Party then designated all e-mails from the search set “Attorneys Eyes Only,” effectively restricting the Requesting Party’s experts from immediately reviewing the documents. The Requesting Party objected to the designation, complaining that the “blanket” designation violated the agreed protective order, while the Producing Party contended that the designation was in compliance with the order. The court opines as follows:

[Requesting Party] argues that a designation of “all emails” is not a legitimate or reasonable category. However, the protective order does not indicate either in Part XIII or elsewhere what constitutes a legitimate category, and the agreed protective order does not more narrowly define what constitutes a legitimate category. Consequently, even though [Producing Party’s] designation of “emails” resulted in a very large category, it is a category. Nothing in the protective order prevents large categorical designations. If [Requesting Party] desired [Producing Party] to be more selective in its use of the confidential designation, [Requesting Party] should have utilized more care in drafting the agreed protective order to include more particular language that is consistent with its position. As it stands, the language of the protective order simply requires a “category” designation. Therefore, this Court finds that [Producing Party] followed and did not violate the protective order.

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008 )

Posted in 7th Circuit, Case Blurbs, Discovery Requests, Magistrate Judge Christopher A. Nuechterlein, N.D. Ind. | Tagged: , | Leave a Comment »