Emerging Case Law and Recent eDiscovery Decisions

Seventh Circuit’s Electronic Discovery Pilot Program –The Seventh Circuit Pilot Program was to develop a new approach based on a set of Principles directed specifically to the issues raised by e-discovery. –Three Sub-Committees Formed: Preservation Early Case Assessment Education

New Jersey Supreme Court Decision Stengart v. Loving Care Agency, Inc (2010 N.J. LEXIS 241). –The court issued an important opinion concerning the attorney-client privilege and an employee’s personal use of an employer-issued computer.

U. S. Supreme Court Decision City of Ontario v. Quon, No , 560 U.S.____(June 17, 2010) –The State trial court had found that officers had a reasonable expectation of privacy in text messages, but that the search did not violate the 4th amendment. The 9th Circuit reversed, holding that the search was unreasonable as matter of law. The US Supreme Court reversed, holding that the search of Quon's text messages was reasonable and did not violate the 4th amendment. The search was motivated by a legitimate work-related purpose, and it was not excessive in scope.

Federal Rule of Evidence 502 Coburn Group, LLC v. Whitecap Advisors LLC, 2009 WL (N.D. Ill, Aug. 7, 2009). –The court deemed that the Defendant’s inadvertent production of a single after a well documented review & production of 72,000 document pages was protected under Rule 502 and ordered the Plaintiff to return all copies of that .

Rule 26(f)- Meet & Confer Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Association, No. 3:07-cv-449, 2009 WL (S.D. Ohio July 24, 2009). –Court criticized both parties for failing to discuss adequately issues regarding ESI, and backup tapes early in the case.

Rule 26(b)(2)(B)- Extent of Production William A. Gross Construction Assocs., v. Am. Mfrs. Mut. Insurance Com., 256 F.R.D. 134 (S.D. NY Mar. 19, 2009). –Court found it necessary to craft keyword search methodologies for the parties and admonished both sides for lack of thought and cooperation in developing search terms.

Sanctions Kipperman v. Onex Corp.,260 F.R.D. 682 (N.D. Ga. May 27, –Defendant attempted to influence the court and ignore a court ruling by asserting that they(D) could decide what electronic material was relevant and discoverable and what was not. The court awarded the plaintiff $1million for the costs associated with this misconduct.

Duty to Preserve ESI KCH Servs., Inc. v. Vanaire, Inc., No C, 2009 WL (W.D. Ky. July, 2009) –The defendant, Vanaire, was notified by KCH that it was illegally using KCH’s software. Vanaire notified their employees to delete this and any other software on their computers that Vanaire did not purchase or own. This continued, even after KCH sent a preservation letter. The court ordered an adverse inference instruction to compensate the plaintiff for lost evidence.

Litigation Hold Major Tours, Inc. v. Colorel, 2009 WL (D.N.J. Aug.4, 2009) –Court granted the plaintiff ‘s request for production of litigation hold letters (normally considered work product) based on a preliminary showing that spoliation existed. Green v. McClendon, 2009 WL (S.D. NY Aug. 13, 2009) –Court issued sanctions for preservation & litigation hold failures.

Litigation Hold The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., Amended Order, Case No. 05-cv-9016 (SDNY Jan. 15, 2010) In this case Judge Scheindlin rules that litigation holds must be issued in writing and that failure to do so is considered gross negligence and could be subject to sanctions, stating … “By now it should be abundantly clear, that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records will inevitably result in the spoliation of evidence.”

State Rule Making regarding ESI 27 States have adopted FRCP provisions in whole or part. –California creates the assumption that all ESI is accessible. 3 are following the Texas Model. –Meet & confer not required. –Mandatory /discretionary cost shifting –No safe harbor. 15 are in early stages or have done little. 4 are considering eDiscovery rules. –Wisconsin – doesn’t include mandatory meet & confer. –New York- appears to be developing their own rules. 1 has just enacted a meet & confer provision. (N.H.)

State Rule Making regarding ESI