After Five Years of E-Discovery Missteps: Sanctions or Safe Harbor?

In 2003 the Zubulake case became the catalyst of change in the world of e-discovery. In that case Judge Shira Scheindlin of the United States District Court for the Southern District of New York set guidelines for e-discovery that served as the basis for amending the Federal Rules of Civil Procedure (FRCP) in December 2006. The amendments incorporated a number of concepts that were described by Judge Scheindlin in the Zubulake case. ( Zubulake v. UBS Warburg LLC, 2003) Since the Zubulake case and the FRCP amendments, numerous cases have interpreted these rules changes, but one of the main points of court decisions is that of preservation of electronically stored information (ESI). A litigation hold to preserve ESI must be put into place as soon as litigation is reasonably anticipated. The failure to preserve ESI has resulted in the largest number of cases where judges have imposed sanctions, but certainly not the only one. This paper reviews the cases to answer the question – are the courts granting safe harbor protection when litigants failed to follow the rules and best practices rather than imposing sanctions? Keywords: e-discovery, electronic discovery, sanctions, safe harbor, electronically stored information, ESI, sanction

Avoiding Sanctions at the E-Discovery Meet-And-Confer in Common Law Countries

The rules of civil procedure in common law countries have been amended to better deal with the requirements of electronic discovery. One of the key changes in case management is the scheduling of a meet-and-confer session where the parties to litigation must meet early in the case before any discovery procedures have begun to exchange information regarding the nature, location, formats, and pertinent facts regarding custody and control of a party’s electronically stored information (ESI). Failure to abide by the rules and participate in good faith at the meet-and-confer session can have dire consequences for the parties and lawyers involved. The authors discuss the importance of creating and maintaining an ESI data map as a means to demonstrate good faith and effectively comply with the requirements of the meet-and-confer

Sampling: Making Electronic Discovery More Cost Effective

With the huge volumes of electronic data subject to discovery in virtually every instance of litigation, time and costs of conducting discovery have become exceedingly important when litigants plan their discovery strategies. Rather than incurring the costs of having lawyers review every document produced in response to a discovery request in search of relevant evidence, a cost effective strategy for document review planning is to use statistical sampling of the database of documents to determine the likelihood of finding relevant evidence by reviewing additional documents. This paper reviews and discusses how sampling can be used to make document review more cost effective by considering issues such as an appropriate sample size, how to develop a sampling strategy, and taking into account the potential value of the litigation in relation to the costs of additional discovery efforts

The Computer Fraud and Abuse Act and the Law of Unintended Consequences

One of the most unanticipated results of the Computer Fraud and Abuse Act arose from the law of unintended consequences. The CFAA was originally enacted in 1984 to protect federal government computers from intrusions and damage caused by hackers, identity thieves, and other cyber criminals. The law was later amended to extend the scope of its application to financial institutions’, business’s and consumers’ computers. To aid in the pursuit of cyber criminals, one of the subsequent revisions to the law included provision “G” that gave the right to private parties to seek compensation for damages in a civil action for unauthorized computer intrusions. This amendment to the law has had the unintended consequence of bolstering, or in some cases supplanting, claims against employees and former employees for claims such as trade secret violations, intellectual property violations, and violations of covenants not to compete. This amendment has also aided employers in their defense of employee claims of sexual harassment, wrongful termination, and other claims by facilitating counterclaims against employees and former employees for computer misuse. This paper examines these developments in the law and likely unintended consequences of the original amendments to the Computer Fraud and Abuse Act. Keywords: computer, fraud, intellectual property, la

Sampling: Making Electronic Discovery More Cost Effective

With the huge volumes of electronic data subject to discovery in virtually every instance of litigation, time and costs of conducting discovery have become exceedingly important when litigants plan their discovery strategies. Rather than incurring the costs of having lawyers review every document produced in response to a discovery request in search of relevant evidence, a cost effective strategy for document review planning is to use statistical sampling of the database of documents to determine the likelihood of finding relevant evidence by reviewing additional documents. This paper reviews and discusses how sampling can be used to make document review more cost effective by considering issues such as an appropriate sample size, how to develop a sampling strategy, and taking into account the potential value of the litigation in relation to the costs of additional discovery efforts. Keywords: sampling, statistical sampling, electronic discover

Avoiding Sanctions at the E-Discovery Meet-And-Confer in Common Law Countries

The rules of civil procedure in common law countries have been amended to better deal with the requirements of electronic discovery. One of the key changes in case management is the scheduling of a meet-and-confer session where the parties to litigation must meet early in the case before any discovery procedures have begun to exchange information regarding the nature, location, formats, and pertinent facts regarding custody and control of a party’s electronically stored information (ESI). Failure to abide by the rules and participate in good faith at the meet-and-confer session can have dire consequences for the parties and lawyers involved. The authors discuss the importance of creating and maintaining an ESI data map as a means to demonstrate good faith and effectively comply with the requirements of the meet-and-confer

Electronic Discovery: A Fool’s Errand Where Angels Fear to Tread?

Electronic discovery has transformed the discovery phase of civil litigation in recent years. The expectations of lawyers and parties were initially established in the Rowe and Zubulake cases that led to a complete revision of the electronic discovery rules contained in the Federal Rules of Civil Procedure. Subsequent cases have underscored the importance of document search methodologies and implications for attorneys, IT professionals, and digital forensics professionals. The authors review how electronic discovery has evolved thus far and offer recommendations regarding the electronic discovery process. Keywords: Electronic discovery, e-discovery, keyword search, concept search

Book Review: Dispute Resolution and E-Discovery

As is apparent from its title, this book tackles two very current and difficult legal issues – electronic discovery and dispute resolution. The authors tie the two legal concepts together in an effort to provide litigants and practitioners a less expensive and less time consuming alternative than is typically the case with traditional litigation and court proceedings. By including electronic discovery in the discussions, the authors recognize the importance and significance of electronic discovery in mediation and arbitration as it is in traditional litigation

Litigation Holds: Past, Present, and Future Directions

Electronically Stored Information (ESI) first became a serious litigation issue in the late 1990s, and the first attempts to determine best practices did not occur until the early 2000s. As best practices developed, the litigation hold to prevent routine destruction of documents and to preserve documents relevant to litigation came into existence. The duty to preserve ESI is triggered when litigation is reasonably anticipated. All information that relates to potential litigation must be preserved from the time it becomes reasonably apparent that litigation is possible until the expiration of the statute of limitations. If steps are not taken to properly collect, preserve, and produce such information for the discovery phase of litigation, the fear is that justice may be perverted. In addition electronically stored information destroyed negligently or intentionally may well be lost forever and result in the litigant being sanctioned. For the first seven years of the new e-discovery rules, litigants who failed to preserve data received severe sanctions for spoliation of evidence. Recent cases and proposed new rules have reversed the decade-long trend of stringent standards requiring litigation holds leaving the state of the law in flux in spite of the fact that accepted best practices do recommend high standards for litigation holds. This paper reviews this conflict in the law and offers recommendations for future directions

Qualcomm v. Broadcom: Implications for Electronic Discovery

Electronic discovery has been the source of difficult challenges for courts, lawyers, and litigants from the beginning. The methods, document formats, and scope of electronic discovery have all contributed to the difficulties encountered. The seminal case in the United States that underscores the nature of the difficulties and challenges facing lawyers and courts in electronic discovery is Qualcomm v. Broadcom. While the case has been cited as an example of the ethical issues facing lawyers who do not follow the rules of discovery, the lessons go well beyond ethical issues. All major common law countries, including Australia, New Zealand, United Kingdom, Canada, South Africa, and the United States have recently updated their rules of civil procedure regarding the electronic discovery process in order to facilitate the electronic discovery process. The authors offer five key lessons to be drawn from this case including the importance of efficiently managing electronic discovery, the importance of the meet-and-confer discovery conference, the importance of retaining an electronic discovery expert, the importance of being proactive in the discovery process, and recognizing the limitations of relying entirely on key word searches