By Greg Flannery

Plaintiff- David R. Lawson Charged with reviewing documents turned over by defendants. Burke and Hull were supervising the review process Defendant Sun Microsystems Brought a motion for sanctions claiming they suffered harm after they told that plaintiff’s had unlocked some of the password protected documents which defendants claim were privileged

On October 2 nd 2007 defendant’s counsel produced ESI to plaintiff counsel Mr. Burke. At that point plaintiff was involved in the document review process. Some the files produced by defendant were password protected. On November 2 nd 2007 plaintiff informed Mr. Burke and Mr. Hull that most of the password protected files had been unlocked Mr. Burke and Mr. Hull failed to read the s from their client The Magistrate Judge found that Burke and Hull’s actions were careless but did not amount to an intentional non-disclose of plaintiff ‘s unlocking of password protected materials The Magistrate Judge found that defendant failed to show any harm that resulted from the plaintiff’s unlocking of the files. Most of the files were the chronology of events, the various contracts and sales incentive plans along with what defendant’s had paid plaintiff and some analysis of this information. The magistrate Judge order plaintiff to pay 25% of defendant’s cost in bringing their sanitations motion which amounts to 13,625.00

Rule 37 (F)- Gives the court the power to sanction parties when they do not act in good faith regarding the discovery process Rule 26 (5) (a)- Provides that when a party does not produce information because of privilege, they must explain in general what the withheld information is and why it has not been produced. Must maintain a privilege log Rule 26 (5) (b)- A party asserting a claim of privilege must notifying the opposing party of the basis of the claim and if any privileged information is turned over the party receiving it must make an effort to return it or destroy it Rules of Professional responsibility 1.4- Lawyers have an a duty to communicate with their clients throughout the course of the representation.

The defendant’s argue that the court can sanction plaintiff’s wanton conflict under their inherent powers The court can sanction plaintiff under their inherent powers because of the violation of the code of professional responsibility rule 1.4 Plaintiff’s conduct is sanction able because defendant’s suffered harm when plaintiff accessed password protected data

Mr. Burke and Mr. Hull’s failure to respond to s from their clients. Failure by Burke and Hull to adequately supervise the E-Discovery and document review process Failure by Burke and Hull to make defendant aware that the password protected material had been accessed by plaintiff

Court finds that the Magistrate Judge found that Burke and Hull only acted carelessly and not with bad faith and therefore the court cannot use its inherent powers to sanction Burke and Hull. Court finds that Magistrate Judge did not analyze Burke and Hull’s conduct in accordance with the requirements of Pro Rep rule 1.4 and therefore no ground for sanctions Court finds that defendant did not suffer harm because of the unlocking of password protected files because all of the files contained factual information which plaintiff’s could have learned through discovery. NO SANCTIONS GIVEN IN THIS CASE

Do you find it surprising that the court found Burke and Hull’s conduct in the E-Discovery process to be careless and yet did not allow sanctions. Why/Why not? Do you think that by password protecting information which the court later found was not privileged and could have been found by the defendant’s in the normal course of discovery that Sun Microsystems was actually the ones acting in bad faith and their actions could have been sanctioned?