Resources

 

Questions or Additions?

If you know of a “must be posted” resource relating to electronic discovery that you think should be added to this page, contact Kathleen Wener.  Kathleen’s contact info is available on our contact page.  Thank you!


FEDERAL RULES OF CIVIL PROCEDURE / SEDONA PRINCIPLES / POCKET GUIDE FOR JUDGES

Online Link to Current Federal Rules of Civil Procedure (as amended Dec 1, 2016): (AVAILABLE HERE)

December 1, 2006 Federal Rules of Civil Procedure: (AVAILABLE HERE)

Advisory Committee Notes to 12/01/06 Amendments to FRCP 34: (AVAILABLE HERE)

2012 Federal Judicial Center 2nd Edition “Managing Discovery of Electronic
Information: A Pocket Guide for Judges”: (AVAILABLE HERE)

USDC Colorado Guidelines for Addressing the Discovery of Electronically Stored Information and Checklist for Rule 26(f) Meet and Confer Regarding Electronically Stored Information.

7th Circuit Electronic Discovery Pilot Program(AVAILABLE HERE)

USDC Northern District of California E-Discovery (ESI) Guidelines (AVAILABLE HERE)

USDC Maryland Suggested Protocol for Discovery of Electronically Stored Information (ESI) (AVAILABLE HERE)

USDC Eastern District of Michigan Model Order re Discovery of ESI and Checklist for Meet & Confer (AVAILABLE HERE)

The Sedona Conference® Working Group on Electronic Document Retention and Production publication regarding electronic document productions, “The Sedona Principles: Second Edition (2007)”. The Second Edition includes a handy chart on page 5 which cross-references to the amended Federal Rules of Civil Procedure, as well as citations to leading case law and court rules. The publication is available for free download at….http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf

The Sedona Conference® Cooperation Proclamation. July 2008. A call to promote cooperation in discovery, particularly ediscovery. Purpose is to promote and drive a change in the culture of discovery to one of heightened cooperation. (AVAILABLE HERE)

USDC EDISCOVERY CASELAW – COLORADO

Review the text of the February 13, 2015 Order of US District Court Judge Christine Arguello, USDC Colorado in Comprehensive Addiction Treatment Center v. Leslea, et al.  where electronically stored information (ESI) expenses were found reasonably necessary for use in the case and  “not merely for the convenience of the parties…nor…produced solely for discovery”.  $57,873.61 was awarded to the prevailing Defendants as recovery costs as “Plaintiffs were aware of the monumental effort to retrieve and convert the data into a retrievable format”.  “The costs incurred by Defendants, the prevailing party, in responding to Plaintiffs’ requests are expenses that are shifted to Plaintiffs, the losing party.  Indeed, Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in “heightened” defense costs.”  (AVAILABLE HERE)

Review the text of the March 27, 2012 Order of Magistrate Kathleen Tafoya, USDC Colorado in Seabron, et al. v. American Family Mutual Insurance Company et al. Absent showing need for metadata, obscure database files must NOT be produced in native format; The Sedona Principles are not binding authority on ESI Form of Production; the standard for form of production of ESI is EITHER how the data is ordinarily maintained OR a reasonably useable format. Citing Advisory Comments to 2006 Federal Amendments to Rule 34…“the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” (AVAILABLE HERE)

Review the text of the August 31, 2010 Order of Magistrate Judge Michael Hegarty, USDC Colorado in Chevron v. Stratus Consulting, et al, ordering responding party to re-produce ESI in native format after prior production in searchable .pdfs. Searchable .pdfs found not “reasonably usable” due to nature of claims and need for authorship, timing, origin info found in native file metadata. Magistrate Judge Hegarty orders that the ESI be produced in native format and “Bates-stamped only as technologically possible”, due to responding party’s earlier requirement that all productions be Bates stamped. (AVAILABLE HERE)

Review the text of the June 15, 2010 Order of Magistrate Judge Kristen Mix, USDC Colorado in MedCorp v. Pinpoint Technologies, ordering Plaintiff (who was found to have willfully spoliated 43 hard drives) to pay $89,365.88 to the Defendant in connection with fees and expenses associated with litigating the spoliation issue. Additionally, a jury instruction inferring that the destroyed evidence was unfavorable to plaintiff (ordered previously by a special master) was upheld by Magistrate Mix. (AVAILABLE HERE)

Review the text of the February 25, 2009 Order of Senior USDC Judge John Kane and Recommendation of Magistrate Judge Michael Watanabe, USDC Colorado in Smith et al. v. Slifer, et al. granting Plaintiff’s Motion for Sanctions for Destruction of Evidence where a party to the action used wiping software to remove data from a computer system after being on notice of investigation and resulting lawsuit. (AVAILABLE HERE)

Review the text of the November 13, 2007 Order of USDC, District of Colorado Magistrate Judge Boyd Boland in Garcia v. Berkshire Life Insurance Company of America granting, in part, defendant’s Motion to Compel plaintiff’s counsel to produce electronic data. “Technical incompetence with respect to computers…” found not to be a viable argument for failure to produce relevant electronic evidence. (AVAILABLE HERE)

Review the text of the April 19, 2007 Order of USDC, District of Colorado Magistrate Judge Michael J. Watanabe in Metro Wastewater Reclamation District v. Alfa Laval, Inc. granting defendant’s Motion to Compel electronic records where plaintiff argued production of same would be too costly. (AVAILABLE HERE)

Review the text of the March 2, 2007 Order of USDC, District of Colorado Magistrate Judge Craig B. Shaffer in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., et al. imposing monetary sanctions relating to failure to preserve electronic evidence, and detailing issues regarding obligations of “The Litigation Hold”. (AVAILABLE HERE)


USDC EDISCOVERY CASELAW – OTHER JURISDICTIONS

August 3, 2015 Order from USDC, New Mexico – General Protecht Group, Inc., et al. v. Leviton Manufacturing Co.  Judge James Browning, ruling on Plaintiff’s Motion for Finding of Exceptional Case Under 35 U.S.C. § 285 and Award of Attorneys’ Fees.  Among other things, Plaintiffs sought to recover costs for work that is “not merely clerical in nature [, such as] charges relating to the creation and maintenance of sophisticated computer databases by highly skilled information technology specialists”.  Judge Browning ultimately denies the Motion, but not without first addressing, extensively, the reasonableness of the fees being requested by the Plaintiff.  “The Court does not agree that a paralegal has to do work an attorney does to be compensated. The whole point of hiring good paralegals is so that attorneys can handle the more complicated aspects of litigation — legal thinking, briefing, writing, and strategizing — rather than managing document control, organization, production, and privilege logs…..The Court would also award attorneys’ fees for work done by Litigation Database Analysts…..the law is less clear to what extent it covers wages that technical specialists accrue doing non-legal work…the Plaintiffs request attorneys’ fees for work that “Litigation Database Analysts” performed….while technology specialists’ duties are not strictly legal in the traditional sense, the Court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked….there is no sound reason to pay paralegals for document work in the 1980s and [*97]  1990s, but not technology specialists doing similar work in 2015 just because their job titles are different.”  (AVAILABLE HERE)

October 23, 2014 Order from USDC, WD Pennsylvania – Kuzynyetsov v. West Penn Allegheny Health Sys.  $60,890.97 costs for native file conversion to requested tiff / full text OCR found equivalent to “making copies of materials” – therefore cost of conversion of native files to requested format were recoverable and awarded to the prevailing party.  (AVAILABLE HERE)

October 16, 2014 Order from USDC, NDCA – Venture Corporation v. Barrett.  In absence of any agreement about form of production, a 41,000 page production described as a “….grab bag of PDF and native files”  found to be “…neither how (Plaintiffs) ordinarily maintained the documents and ESI nor…..in a reasonably useable form”.  Plaintiff ordered to REproduce with organization and labeling as required by FRCP 34(b)(2)(E)(i) and other organizational information AND also produce load files containing searchable text and metadata.  Defendants Motion to Compel granted. (AVAILABLE HERE)

March 6, 2014 Order of US District Judge James O. Browning, USDC New Mexico in Anderson Living Trust, et al. v. WPX Energy Production. Court finds that where parties had an agreement to exchange productions electronically, NO REQUIREMENT exists to label, correlate, or organize electronically stored information….INCLUDING 20 thousand original hard copy documents scanned to pdf for production.  The Court finds that Rule 34(b)(2)(E)(ii) governs due to parties’ mutual agreement to transmit discovery in electronic format (production of ESI in form that the requesting party requests).  Rule rule 34(b)(2)(E)(i), requiring production in usual course of business or labeled corresponding to category of production request, DOES NOT apply.  Where agreement exists to produced in electronic format, scanned paper pdfs are ESI.  (AVAILABLE HERE)

November 25, 2013 Order from USDC, Connecticut – Saliga v. Chemtura Corporation.  After a prolonged dispute over form of email production, the Court orders native production because defense counsel never provided a convincing argument not to.  Defense argued that native email production would cause basic litigation practice problems, arguing that there was “no basis or need” for native production.  The Court states that defense “has not shown compelling reasons why it cannot produce the information in the format requested by the plaintiff…” citing numerous other opinions ordering native production, including the following quote from a 2009 Northern District of Georgia opinion  “…the court is confident that the precision of record citations can be appropriately dealt with should [plaintiff] desire to use any of the documents at issue as exhibits or evidence….” (AVAILABLE HERE)

January 18, 2013 Order from Texas Court of Appeals.  In re Waste Management of Texas (06-12-00097-CV).  Writ of mandamus by Waste Management requesting withdrawal of trial court’s order requiring native REproduction of 25.27 GB of previously produced business records (which had been produced in PDF format without metadata at a cost of $110,000.00).  Court describes PDF production as “costly discretionary decision”.  Court cites FRCP 34 advisory committee notes to 2006 amendments which state “option to produce in reasonably useable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to sue the information….”  Court says terminology of “reasonable manner” is the functional equivalent of FRCP 34(b) “reasonably useable form or forms” and is sufficiently specific to warrant native production in this instance.  (AVAILABLE HERE)

April 11, 2011 Order from USDC, ND of California, Quality Investment Properties v. Serrano Electric where the court admonishes both parties for failure to discuss form of production at their FRCP 26(f) meet and confer. Counsel for defense filed a Motion to Compel and Motion for Sanctions. US Magistrate Judge Grewal states, “Had there been a candid discussion about the form in which documents should be produced, the events precipitating this motion could have been avoided. Instead, rather than the parties each controlling its own fate by negotiating an agreement each could live with, the court must now decide which one of the parties will invest further resources to correct these mistakes.” Judge Grewal goes on to suggest to counsel that the litigation support professionals for each party meet to discuss “….how the data already produced can be loaded into Serrano’s litigation database and then searched.” (AVAILABLE HERE)

August 6, 2010 Order from USDC, ND of Misssissippi, The Estate of Eva Boles v. National Heritage Realty, et al. Defendants failed to raise the issue of Rule 34 (form of production) until just 2 weeks prior to trial, and were ordered to produce a highly confidential ledger in “unaltered electronic format” by 5:00 p.m. the day following the Order despite numerous briefs, hearings and emergency motions. The Court noted that Defendants’ repeated objections to production requests were made on the basis of confidentiality, relevance, burden and prejudice…all which were “factors other than form”. “Rule 34(b)(2)(D) places the burden on the responding party to “state the form or forms it intends to use.” (AVAILABLE HERE)

January 21, 2010 Order from USDC, Utah, Acessdata Corporation v. Alste Technologies. Defendant was ordered to reproduce previously produced electronically stored information after their initial production amounted to conversion of email (electronic data) to non searchable .PDF files. The order cites the Advisory Committee Notes to FRCP 34(b)(2)(E)(ii) as follows, “….If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” The Court found that the all too common practice of printing out email and then rescanning it to a non-searchable .PDF for production was not “reasonably usable” nor was it “the format in which it is ordinarily maintained.” (AVAILABLE HERE)

January 15, 2010 Order from USDC, SDNY, The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al. where adverse inference jury instructions concerning spoliation of evidence and monetary sanctions are imposed against plaintiffs who were found to be grossly negligent and negligent with regard to discovery obligations. (AVAILABLE HERE)

August 21, 2007 Order from USDC, Middle District of Florida, In re: Seroquel granting plaintiffs’ Motion for Sanctions against Defendants for failure to produce electronic data “in a usable format”. Problems included lack of page breaks, bates labels, load files and parent / attachment relationships. Court found defense “purposely sluggish” with regard to attempts to provide evidence “in a usable format”. “It is not appropriate to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence”. (AVAILABLE HERE)

May 29, 2008 Order from USDC, Maryland, Victor Stanley Inc. v. Creative Pipe, Inc., et al. ruling that word searches to locate privileged documents, and also only looked at titles of non-text searchable documents to determine privilege. Magistrate ruled that 165 documents, including emails between defense counsel and their client, may be used by plaintiff’s counsel as evidence. Complete waiver of attorney / client privilege in this case was not requested by plaintiff’s counsel. (AVAILABLE HERE)

The Zubulake Opinions: (AVAILABLE HERE) – then click on Bookmark tab on left pane for index to the opinions.


STATE ISSUED GUIDELINES & COURT RULES RE: DISCOVERY OF ESI

Listing of states that have enacted electronic discovery rules: (AVAILABLE HERE)

Local rules, forms and guidelines adopted by USDC Courts: (AVAILABLE HERE)

New York State Bar issues “Best Practices in E-Discovery in New York State and Federal Courts” : (AVAILABLE HERE)


GLOSSARY OF ELECTRONIC DISCOVERY TERMS

EDRM’s glossary of electronic discovery terms: (AVAILABLE HERE)


ONLINE ELECTRONIC DISCOVERY RESOURCES

Electronic Discovery Reference Model (EDRM)

eDiscovery Assistant – iPad app

LegalTech 2014 Video: Magistrate Judge John M. Facciola on technology education

K&L Gates Electronic Discovery Law Website

Georgetown Law eDiscovery Training Academy

Electronic Discovery Best Practices

eDiscovery Daily Blog

Electronic Discovery Reading Room

Electronic Discovery Institute

Ralph Losey Blog e-Discovery Team

Association of Certified eDiscovery Specialists

Document Technology Inc’s (DTI) Discovery Resources Website

www.craigball.com

www.floridalawfirm.com

Legal Technology Professionals Institute


INADVERTENT PRODUCTION OF METADATA

Colorado Bar Association Ethics Committee Formal Opinion 119: Disclosure, Review and Use of Metadata,
adopted 05/17/08: (AVAILABLE HERE)