Category Archives: Preservation

The Difference Between a Preservation Letter and Presentation Notice.

16 Sunday Oct 2016

Posted by in Discovery, E-Discovery, Preservation

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Crafting the “Perfect” Legal Hold Notice, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2016/10/09/crafting-the-perfect-legal-hold-notice/

When it comes to e-discovery, Craig Ball and his blog, Ball in Your Court, is one of my top resources. Some years ago, he posted “The Perfect Preservation Letter,” as a guide of what you would send to the opposing party to put them on notice of a litigation hold.

This document is similar and just as important – an internal notice or the kind of notice you would give to your client. The following is only a snippet of his post.

When it comes to deciding whether to send a preservation letter or notice, I would err on the side of caution. In the early stages of a case, you may not know whether the legal issue will become litigation. Not all disputes are litigated. But if you wait until it does, e-discovery may already be wiped or corrupted.

Some clients may balk at the scope and breadth of your preservation notice, which is why it Mr. Ball’s rules of thumb are so helpful. A reasonable precaution will be worth the effort. – CCE

[T[he inapparent distinction between a preservation letter and a preservation notice is that the latter is an internal communication better termed a legal hold directive.  You send a preservation letter to the other side.  The preservation notice is what a party furnishes to its own principals, employees, agents, contractors and anyone else aligned with the party giving the notice and obliged to preserve information in anticipation or initiation of litigation.  Clearly, we must find better terminology to distinguish the two than just “letter” and ‘notice.’

[I] drafted a list of ten elements I thought were essential components of whatever communication aspires to call itself the perfect preservation notice.

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For E-Discovery Requests, The Court Says It’s Not Enough To Say Nothing Was Found.

11 Tuesday Oct 2016

Posted by in Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Preservation, Requests for Production, Subpoena Duces Tecum

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Don’t Just Say, “No Emails Found,” by Josh Gilliland, Bow Tie Law Blog

http://bowtielaw.com/2016/10/04/dont-just-say-no-emails-found/

The plaintiff asked the defendant to produce emails relevant to an event on a specific date. The defendant said there were no such emails, and had nothing to produce. The judge agreed that the defendant could not produce what did not exist, but ordered the defendant to show how it determined no emails existed. Simply saying that no emails existed was not a sufficient answer.

 If you are the defendant, what else should you say to satisfy the court? -CCE

Litgation Hold – Too Little Too Late.

25 Thursday Feb 2016

Posted by in Cell Phones, Discovery, E-Discovery, Emails, Emails, Legal Technology, Litigation Hold, Municipal Law, Open Records Act, Preservation, Requests for Production, Sanctions

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Our Nation’s Largest City is Not Immune to eDiscovery Sanctions: eDiscovery Case Law, by Doug Law, eDiscovery daily Blog

http://bit.ly/1Rqmnc0

In Stinson v. City of New York, 10 Civ. 4228 (RWS) (S.D.N.Y. Jan. 2, 2016), New York District Judge Robert W. Sweet granted in part and denied in part the plaintiffs’ motion seeking sanctions for spoliation of evidence against the defendants for failure to issue a litigation hold, opting for a permissive inference rather than a mandatory adverse inference sanction against the defendants .

Case Background

In this civil rights class action against the City of New York, it was determined that the City did not issue any litigation hold until August 8, 2013, more than three years after the filing of the Complaint in this case and the litigation hold was not effectively communicated, and none of the officers who were named in the City’s initial disclosures acknowledged receiving it. . . .

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Clients – Don’t Wipe That Cell Phone!

06 Saturday Feb 2016

Posted by in Android Phones, Blackberry Phones, Cell Phones, Discovery, E-Discovery, Evidence, Forensic Evidence, iPhones, Legal Technology, Preservation, Sanctions, Spoilation

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Appeals Court Upholds Terminating Sanctions For Wipe of Cell Phone, by Doug Austin, eDiscovery Case Law

http://bit.ly/1K5mzxO

In Woodell v. Bernstein, et. al., No. 14-2836 (Cal. App., Dec. 30, 2015), the California Court of Appeals affirmed the judgment of the trial court, which imposed terminating sanctions against the plaintiff for spoliation of evidence and dismissed his lawsuit with prejudice after the plaintiff had wiped his cell phone, which was key to the case. . . .

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Questions About The New Federal Rules Amendments on Discovery? – 3rd of 5-Part Guide.

26 Thursday Nov 2015

Posted by in Court Rules, Courts, Discovery, E-Discovery, Federal District Court Rules, Preservation

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Day 3: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Preservation, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocacy Blog

http://bit.ly/1NvYTnd

This is the third of five posts discussing the current amendments to the Federal Rules of Civil Procedure. The Rules went into effect December 1, 2015. Today’s post addresses “Preservation.” -CCE

Questions About The New Federal Rules Amendments on Discovery? – 2nd of 5-Part Guide.

26 Thursday Nov 2015

Posted by in Admissibility, Concept Search Tools, Court Rules, Courts, Discovery, E-Discovery, Evidence, Federal District Court Rules, Preservation, Rule 16 Conference

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Day 2: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Early Case Assessment, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog

http://bit.ly/1jluREF

The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work. While debates remain as to how certain parts of the Rules will wear-and-tear once put to the test in discovery, there are clear indications within the text of the Rules (with some help from the Committee Notes to the Rules and the contributions of judges and other writers) as to how the Rules will apply. . . .

Today we review: Early Case Assessment.

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Questions About The New Federal Rules Amendments on Discovery? – 1st of 5-Part Guide.

21 Saturday Nov 2015

Posted by in Civil Procedure, Discovery, E-Discovery, Federal Civil Procedure, Preservation

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 Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Proportionality, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog

http://tinyurl.com/o72ub69

If you do not fully comprehend the recent amendments to the Federal Rules of Civil Procedure, you are not alone. We will learn more as district and circuit courts rule on cases affected by these amendments.

Please note the hyperlink under the “Conference Commentary” button to see the Summary of The Report of The Judicial Conference Committee on Rules of Practice and Procedure, which will also assist you. -CCE

The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work . . . .

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Were Deleted Emails A Failure to Preserve?

15 Sunday Nov 2015

Posted by in Discovery, E-Discovery, Emails, Preservation

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Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog

http://tinyurl.com/ndmfrlx

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude ‘Plaintiff’s use of any argument or evidence of alleged spoliation’ where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s ‘old computer’ and to hire a third party to search for and recover relevant emails and documents from the same. . . .

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Is It Okay To Wipe A Former Employee’s Computer?

04 Tuesday Aug 2015

Posted by in Discovery, E-Discovery, Evidence, Forensic Evidence, Law Office Management, Litigation Hold, Office Procedures, Preservation, Technology

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Court Denies Request for Sanctions for Routine Deletion of Files of Departed Employees: eDiscovery Case Law, by Doug Austin, eDiscoverydaily

http://tinyurl.com/p2jfsqe

For many employers, it is normal procedure to “wipe” the computer of recently former employees after removing anything not already stored on the employer’s network. Is this a bad practice? -CCE

In Charvat et al. v. Valente et al., 12-5746 (N.D. Ill. July 1, 2015), Illinois Magistrate Judge Mary M. Rowland denied the plaintiff’s request for spoliation sanctions for the defendant’s admitted destruction of computer files belonging to two departed employees, finding that the plaintiff did not provide any evidence that the defendant acted in bad faith. . . .

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Spoiled Evidence On Both Sides – What Else Could Go Wrong?

24 Wednesday Jun 2015

Posted by in Depositions, Discovery, E-Discovery, Evidence, Intellectual Property, Preservation, Spoilation

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Court Finds Wife Liable for Agent-Husband’s Intentional Deletions, Recommends Default Judgment, by K&L Gates in CASE SUMMARIES

http://tinyurl.com/o9p3kmn

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015)

In this copyright infringement case, the court found that Defendants ‘spoiled evidence, committed perjury, and failed to discharge their duties to conduct discovery reasonably and in good faith’ and recommended default judgment. Notably, in addition to more familiar issues surrounding the topic of spoliation, the court’s opinion addressed the question of whether spoliation occurs when information is still recoverable (yes) and the propriety of imputing an agent’s bad acts in discovery where, as in this case, Defendant Wife ‘left it to her agent—her husband—to respond to Plaintiff’s document requests.’ . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.

19 Tuesday May 2015

Posted by in Discovery, E-Discovery, Preservation, Sanctions

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Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/k3d74yu

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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Do-It-Yourself E-Discovery? Is There Such A Thing?

08 Sunday Feb 2015

Posted by in Concept Search Tools, Discovery, Document Review, E-Discovery, Emails, Federal Rules of Discovery, Legal Technology, Microsoft Office, Native Format, Outlook, Preservation, Requests for Production, Rule 34

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Do-It-Yourself Digital Discovery, Revisited, by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/ol2urvf

In case you have not noticed, Craig Ball is re-posting older articles, as he explains below. Truly folks, when it comes to e-discovery, when Craig Ball speaks, I listen. Maybe you should too. 

I have posted many of his revisited posts. To find them all, visit his blog, Ball In Your Court at https://ballinyourcourt.wordpress.com/. -CCE

This is the thirteenth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations.  As always, your comments are gratefully solicited.

Do-It-Yourself Digital Discovery [Originally published in Law Technology News, May 2006]

Recently, a West Texas firm received a dozen Microsoft Outlook PST files from a client. Like the dog that caught the car, they weren’t sure what to do next.  Even out on the prairie, they’d heard of online hosting and e-mail analytics, but worried about the cost. They wondered: Did they really need an e-discovery vendor? Couldn’t they just do it themselves?

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ’Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

As a computer forensic examiner, I blanch at the thought of lawyers harvesting data and processing e-mail in native formats. ‘Guard the chain of custody,’ I want to warn. ‘Don’t mess up the metadata! Leave this stuff to the experts!’ But the trial lawyer in me wonders how a solo/small firm practitioner in a run-of-the-mill case is supposed to tell a client, ‘Sorry, the courts are closed to you because you can’t afford e-discovery experts.’

Most evidence today is electronic, so curtailing discovery of electronic evidence isn’t an option, and trying to stick with paper is a dead end. We’ve got to deal with electronic evidence in small cases, too. Sometimes, that means doing it yourself.

The West Texas lawyers sought a way to access and search the Outlook e-mail and attachments in the PSTs. It had to be quick and easy. It had to protect the integrity of the evidence. And it had to be cheap. They wanted what many lawyers will come to see they need: the tools and techniques to stay in touch with the evidence in smaller cases without working through vendors and experts.

What’s a PST?

Microsoft Outlook is the most popular business e-mail and calendaring client, but don’t confuse Outlook with Outlook Express, a simpler application bundled with Windows. Outlook Express stores messages in plain text, by folder name, in files with the extension .DBX. Outlook stores local message data, attachments, folder structure and other information in an encrypted, often-massive database file with the extension .PST. Because the PST file structure is complex, proprietary and poorly documented, some programs have trouble interpreting PSTs.

What About Outlook?

Couldn’t they just load the files in Outlook and search? Many do just that, but there are compelling reasons why Outlook is the wrong choice for an electronic discovery search and review tool, foremost among them being that it doesn’t protect the integrity of the evidence. Outlook changes PST files. Further, Outlook searches are slow, don’t include attachments (but see my concluding comments below) and can’t be run across multiple mail accounts. . . . .

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Craig Ball on E-Discovery, Litigation Holds, and Evidence Preservation.

20 Tuesday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Litigation Hold, Preservation, Relevance, Requests for Production

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The Path to E-Mail Production II, Revisited, by Craig Ball, Ball In Your Court

http://tinyurl.com/q4uozfh

This is the seventh in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

The Path to Production: Retention Policies That Work

(Part II of IV)

[Originally published in Law Technology News, November 2005]

We continue down the path to production of electronic mail. Yesterday, I reminded you to look beyond the e-mail server to the many other places e-mail hides. Now, having identified the evidence, we’re obliged to protect it from deletion, alteration and corruption.

Preservation
Anticipation of a claim is all that’s required to trigger a duty to preserve potentially relevant evidence, including fragile, ever-changing electronic data. Preservation allows backtracking on the path to production, but fail to preserve evidence and you’ve burned your bridges.

Complicating our preservation effort is the autonomy afforded e-mail users. They create quirky folder structures, commingle personal and business communications and — most dangerous of all — control deletion and retention of messages.

Best practices dictate that we instruct e-mail custodians to retain potentially relevant messages and that we regularly convey to them sufficient information to assess relevance in a consistent manner. In real life, hold directives alone are insufficient. Users find it irresistibly easy to delete data, so anticipate human frailty and act to protect evidence from spoliation at the hands of those inclined to destroy it. Don’t leave the fox guarding the henhouse. . . .

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E-Discovery Is Scary!

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Native Format, Preservation, Requests for Production

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How NOT to Produce Facebook Evidence, by Molly DiBianca, The Delaware Employment Law Blog

http://tinyurl.com/l8tvv2c

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it. I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it. Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

A recent case from South Carolina gives a pretty good example of how not to produce electronically stored information (ESI). In Wellin v. Wellin, the defendants moved to compel the production of certain ESI, including emails, text messages, and Facebook posts in ‘native format.’ (Native format means, in the most basic sense, that if it was originally in electronic form, you must produce it in electronic form, as opposed to paper form).

The plaintiffs apparently had attempted to produce the requested items but, instead of producing the responsive material in native format, they . . . [wait for it, wait for it] . . .  .-

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What Is The Case About And What Are You Looking For?

17 Saturday Jan 2015

Posted by in Discovery, Document Review, E-Discovery, Hard Drives, Preservation, Requests for Production

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Don’t Try This at Home, Revisited, by Craig Ball, Ball In Your Court

https://ballinyourcourt.wordpress.com/2015/01/16/dont-try-this-at-home-revisited/

This is the fifth in a series revisiting Ball in Your Court columns and posts from the primordial past of e-discovery–updating and critiquing in places, and hopefully restarting a few conversations. As always, your comments are gratefully solicited.

Don’t Try This at Home

[Originally published in Law Technology News, August 2005]

The legal assistant on the phone asked, “Can you send us copies of their hard drives?”

As court-appointed Special Master, I’d imaged the contents of the defendant’s computers and served as custodian of the data for several months. The plaintiff’s lawyer had been wise to lock down the data before it disappeared, but like the dog that caught the car, he didn’t know what to do next. Now, with trial a month away, it was time to start looking at the evidence.

“Not unless the judge orders me to give them to you,” I replied. . . .

Ignore Duty For Litigation Holds At Your Peril.

15 Wednesday Oct 2014

Posted by in Discovery, E-Discovery, Employment Law, Litigation Hold, Preservation, Race Discrimination, Sanctions, U.S. District Court for the Southern District of New York

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Don’t Hit That Delete Button: An Update On Litigation Holds For Employment Claims, by Andrew P. Sherrod, Inside Counsel Magazine

http://tinyurl.com/ka6thgo

By now, most companies are — or at least should be — well aware of their obligation to preserve relevant documents and electronic information when they reasonably anticipate litigation. This duty can arise in many contexts, but employment complaints are a prime example. Despite the multitude of judicial decisions and articles on the subject, companies continue to hinder their defense of employment claims by failing to undertake appropriate preservation measures.

The consequences of failing to implement and monitor a litigation hold in response to an employment claim were reinforced in a recent decision from the United States District Court for the Southern District of New York in Hawley v. Mphasis Corp.

In Hawley, an employee of the defendant company claimed that he was discriminated against on the basis of his ethnicity in a number of ways during the course of his employment. The employee filed an EEOC charge of race and national origin discrimination in September 2009. The company terminated the employee in November 2009, and he thereafter filed a second EEOC charge, which was mailed to the company in December 2009. The employee then filed a discrimination suit in January 2012 against the company under 42 U.S.C. § 1981 and state civil rights laws.

During his employment, the plaintiff received a company-issued laptop computer on which he was required to perform his work. After his termination, the employee returned the computer to the company in December 2009. The next month, the company reassigned the computer to another employee, permanently deleting all of the plaintiff’s data.

The company also waited until April 2012 — almost three months after the filing of the plaintiff employee’s lawsuit and more than two years after his EEOC charges — to instruct the plaintiff’s supervisor and several other employees to preserve all documents and communications related to the plaintiff. . . .

Philadelphia Legal Opinion on Duty to Preserve Social Media Evidence.

25 Thursday Sep 2014

Posted by in Admissibility, Authentication, Discovery, E-Discovery, Evidence, Litigation Hold, Metadata, Preservation, Social Media

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Lawyer’s Duty to Preserve Social Media Evidence, by Hayes Hunt and Jeffrey Monhait, From the Sidebar Blog

http://tinyurl.com/nn6tmor

Lawyers must take ‘appropriate’ steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar Association. However, lawyers may advise a client to restrict access to the client’s social media so long as the attorney neither instructs nor permits the client to permanently destroy that information. An attorney may even instruct a client to delete information from the client’s page if the attorney preserves that information, including metadata.

You Can Hide, But You Must Preserve
Changing social media settings to ‘private’ merely restricts who may access a web page. The opposing party can still access relevant and discoverable information through discovery or by issuing a subpoena. The committee concluded that this position satisfied Rule 3.4’s prohibition against altering or destroying evidence. As long as the attorney preserves the complete evidentiary record, including metadata, an attorney may advise a client to restrict access to the client’s social media evidence, or remove social media content entirely.

You ‘Must’ Produce Complete Social Media Content
To comply with discovery requests, a lawyer ‘must’ produce the client’s complete social media content if the attorney is aware of this content’s existence. This duty arises from Rule 4.1, which prohibits attorneys from making ‘a false statement of material fact or law to a third person,’ and Rule 8.4, which prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation.’ A lawyer that purposefully omits portions of social media content, or permits or directs the client to destroy social media content, violates these rules.

Also, a lawyer must take reasonable steps to obtain relevant information from the client when the lawyer ‘reasonably believes’ that the client possesses relevant information, such as photographs, links, or other social media content. Despite being obligated to take reasonable steps, a lawyer need not obtain information that was neither in the client’s possession nor the lawyer’s possession.
Frankly, this isn’t groundbreaking or a new duty, it merely reinforces the need for lawyers to better understand social media for purposes of litigation.

Craig Ball On An Essential Lawyer Skill – The Custodial Hold.

23 Saturday Aug 2014

Posted by in Discovery, E-Discovery, Litigation Hold, Preservation

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Custodial Hold: Trust But Verify, by Craig Ball, Ball In Your Court Blog

http://ballinyourcourt.wordpress.com/2012/08/09/custodial-hold-trust-but-verify/

Please click on the link to the Pension Committee opinion (you’ll see it in Craig Ball’s article). You’re getting two for one here. Besides, when it’s Craig Ball, you know it’s going to be good. -CCE

Long before the Pension Committee opinion, my dear friend and revered colleague, Browning Marean, presciently observed that the ability to frame and implement a legal hold would prove an essential lawyer skill.  Browning understood, as many lawyers are only now coming to appreciate, that ‘legal hold’ is more than just a communique.  It’s a multi-pronged, organic process that must be tailored to the needs of the case like a fine suit of clothes.  For all the sensible emphasis on use of a repeatable process, the most successful and cost-effective legal holds demonstrate a bespoke character from the practiced hand of an awake, aware and able attorney.

Unfortunately, that deliberate, evolving character is one of the two things that people hate most about legal holds (the other being the cost).  They want legal hold to be a checklist, a form letter, a tool–all of which have value, but none of which suffice, individually or collectively, to forestall the need for a capable person who understands the ESI environment and is accountable for getting the legal hold right.  It’s a balancing act; one maximizing the retention of relevant, material, non-duplicative information while minimizing the cost, complexity and business disruption attendant to meeting one’s legal responsibilities.  Achieving balance means you can’t choose one or the other, you need both. . . .

IRS Says It Did Not Back Up Email, But Relied on Employees To Archive Email On Personal Computers.

17 Tuesday Jun 2014

Posted by in Depositions, E-Discovery, Emails, Government, Internal Revenue Service, Legal Technology, Litigation Hold, Microsoft Office, Outlook, PC Computers, Preservation, Requests for Production

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GOP: IRS Lost More Emails In Tea Party Affair, by Rachel Bade with contributions by Josh Gerstein and Brian Faler, POLITICOPro

http://tinyurl.com/k9ycgz6

This did not catch my eye because of the politics or that the involved party is the IRS. I was simply in awe that anyone in this day and age of litigation holds and e-discovery could – with a straight face – claim to have irretrievably lost so much computer data.  -CCE

Republicans on Tuesday charged that the IRS has lost emails of a half dozen of its employees involved in the tea party targeting controversy, including a top aide to the now-fired acting IRS commissioner.

In addition to losing two years’ worth of emails sent and received by Lois Lerner, the central figure in the scandal, the IRS ‘cannot produce records from six other IRS employees involved in the targeting of conservative groups,’ Ways and Means Republicans said in a release.

* * *

Ways and Means does not say how the emails went missing or what time specific time periods are involved, though they say it includes the period at issue. In the case of Lerner, for example, her archived emails between 2009 and 2011 were washed away in a 2011 computer crash, the agency says.

* * *

The IRS says that at the time they did not keep records of or back up all emails. Rather, they relied on employees to archive them on their personal computers after they ran out of storage space in their Outlook inboxes. . . .

Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.

08 Sunday Jun 2014

Posted by in Court Rules, Courts, Depositions, Discovery, E-Discovery, Federal District Court Rules, Federal Rules of Discovery, Interrogatories, Preservation, Requests for Admissions, Requests for Production

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Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.

http://tinyurl.com/myroxzm

The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE

Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation.  The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule).  Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.

The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.

Don’t Offer An E-Database If You Can’t Afford It.

14 Wednesday May 2014

Posted by in Appellate Law, Criminal Law, Databases, Discovery, Document Review, E-Discovery, Metadata, Preservation, Requests for Production

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Despite Alleged Budget Constraints, Government Ordered to Continue to Pay for Database to Avoid Prejudice to Criminal Defendants, Electronic Discovery Law, published by K&L Gates

http://tinyurl.com/led86em

In this criminal case, the Government was ordered to continue to maintain a Relativity Database (the ‘Database’) utilized by the parties to review documents produced by the Government and to continue to provide Defendants with the access and support that the parties had previously negotiated, despite the depletion of funding for the Database which was accelerated by the Government’s voluntary actions. . . .

How Not To Do E-Discovery.

15 Tuesday Apr 2014

Posted by in Discovery, E-Discovery, Litigation Hold, Preservation, Sanctions

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Fears and Loathing (and Pain) in Seattle: a Case Lesson in How NOT to Preserve and Produce Email – Part One, by Ralph Losey, e-Discovery Team®

http://tinyurl.com/l8ujksu

If e-discovery is part of your life, you need to read this blog. Ralph Losey is not the only expert showcased here, but he is definitely one of the best. E-discovery is an area of law that is constantly evolving. If you do not work in it frequently, it is easy to get lost. Blogs such as these will help. -CCE

A recent case in Seattle provides a text-book example of how not to do e-discovery. It concludes with a sanctions order against the defendant, and the defendant’s law firm, Payne & Fears LLP. The law firm was fined $10,000, payable to the court, due to the conduct of two of its attorneys. The defendant, Corinthian Colleges, was fined another $25,000. Knickerbocker v Corinthian Colleges, Case No. C12-1142JLR, (WDWA, April 7, 2014). . . .

If Your Copier Has A Hard Drive, Is Its Stored Data Susceptible to E-Discovery?

09 Sunday Mar 2014

Posted by in Confidentiality, Databases, Discovery, E-Discovery, Law Office Management, Legal Ethics, Legal Technology, Litigation Hold, Metadata, Native Format, Office Procedures, Preservation, Sanctions, Technology

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Be Aware: Copying Machines Can Have Hard Drives And Store Copies – That’s Potential Out-Of-The-Box Discovery, by Adolph J. Levy, Out-Of-The-Box Lawyering Blog

http://tinyurl.com/mmpkd5h

Did you know that some copying machines have hard drives and store digital copies of the copies they have made? Or that the hard drives could even contain 25,000 copies that have been made? Copier + Hard Drive: A Dangerous Combination.

Lawyers are used to discovering e-mail, but now what about using discovery to find copies that a opposing party made over time? Wouldn’t you like to be at your opponent’s office and see the originals of all the copies that were being made?

Well, now, fortunately — or unfortunately — you might be able to. . . .

E-Discovery Federal Rule Amendments and More.

06 Thursday Mar 2014

Posted by in Bankruptcy Law, Case Law, Court Rules, Discovery, E-Discovery, Federal District Court Rules, Federal Law, Litigation, Mandatory Law, Metadata, Preservation, Primary Law, Regulations, Research, Sanctions, State Law, Statutes, Technology, The Sedona Conference, Trial Tips and Techniques

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Category Archives: FEDERAL RULES AMENDMENTS, by Electronic Discovery, K&L Gates

http://www.ediscoverylaw.com/articles/federal-rules-amendments/

 Notice and analysis of electronic discovery federal rule amendments. You can count on this website to be updated promptly and the information and analysis is accurate. Free subscription by RSS feed.

While you are there, it is worth your time to browse the variety of information published by K&L Gates. They are experts on e-discovery. You will find, among other things:

Just poke around. I do not think you will be disappointed. -CCE

Excellent Case on Document Retention Policies and Litigation Holds.

26 Sunday Jan 2014

Posted by in E-Discovery, Hearsay, Judges, Legal Technology, Litigation, Litigation Hold, Preservation, Sanctions, Trial Tips and Techniques

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No Sanctions for Following Records Retention Policy, by Joshua Gilliland, Esq., Bow Tie’s Law Blog

http://tinyurl.com/opq4t3t

It is not every day you see lawsuits about insurance policies from 1986 to 1987.

Add Judge Paul Grimm’s powerhouse footnotes and you get a great lesson in document retention policies and litigation holds (plus a great footnote on the state of mind exception to hearsay for all the evidence fans).