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Jun
25
Government animus towards plaintiffs leads to adverse inference and other sanctions against government
June 25, 2009 | Leave a Comment
Plunk v. Village of Elwood, 2009 U.S. Dist. LEXIS 42952 (N.D. Ill. May 20, 2009)
Plaintiffs Ron Plunk, Sr. and Ron Plunk, Jr. owned a landscaping company which had landscaping contracts with the Village of Elwood. In late 2005, the relationship between the Village and the Plunks began to sour. The village manager, Haywood, made derogatory comments to the Plunks in 2006. After the City Clerk informed the police chief, Albert, about this conversation, the chief ordered defendant police officer Donchez to arrest Plunk, Sr. Although Haywood refused to press charges against the Plunks, Blum signed a complaint for aggravated assault against Plunk, Sr., based on the conversation between Haywood and the Plunks. A warrant was issued for Plunk, Sr.’s arrest. Although he surrendered and posted bail, Chief Albert ordered Donchez to arrest Plunk, Sr. A judge later directed a verdict for Plunk, Sr. on the aggravated assault charge.
Jun
14
Untimely objections doom motions to compel
June 14, 2009 | Leave a Comment
Ford Motor Co. v. Edgewood Properties, Inc., 2009 U.S. Dist. LEXIS 42001 (D.N.J. May 18, 2009)
Requestor had originally asked for production in native format, but in producer’s response, it stated that ESI would be produced in Tagged Image File Format (“TIFF”), along with searchable text. The court cited Principle 12 of the Sedona Principles that
[a]bsent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
The court noted however, that “[t]his Principle, of course would be better applied in a case where production had not yet commenced.” Id. at *16. In this instance, the motion was made after producer’s production was complete.
Jun
7
Henderson v. U.S. Bank, N.A., 2009 U.S. Dist. LEXIS 40968 (E.D. Wis. Apr. 29, 2009)
Requestor, pursuant to a “request for electronic devices,” asked for all computers used by producers from September, 2007 to the present, all electronic storage devices for the same time period, and all access codes in order to access the files stored on the devices. A computer expert would make images of the devices, and return them to producers, along with copies of the images. Requestor would stipulate to measures to protect confidential information.
Producer objected, asserting that requestors had essentially asked for all of producer’s ESI. Producer argued that requestor must ask for specific categories of ESI and permit producers to search in order to provide responsive information.
May
28
The National Institute of Standards and Technology has organized the Text REtrieval Conference (TREC), which is a leading experimental effort aimed at encouraging worldwide research into information retrieval issues. The purpose of the TREC legal track is to evaluate search tools and methods as they are used in the context of e-discovery. The project is supported by the Sedona Conference. Read the open letter by the Conference.
Now in its fourth year, an essential part of the project is a volunteer corps of lawyers, law students, and other individuals with legal training, reviewing documents for purposes of making an assessment of relevance. Volunteers are still needed, so you can become a part of this important effort! An FAQ on the project can be found here.
May
19
Sanctions mostly denied where producer is able to implement preservation program
May 19, 2009 | Leave a Comment
Requestor filed spoliation sanctions against producer for producer’s failure to preserve certain information. Among requestor’s claims were that producer’s employees “carefully crafted any potentially discoverable document in a manner helpful to [producer] Real’s litigation by using specific words and avoiding certain word phrases.” Id. at *24. One of producer’s former employees testified that she was instructed to delete e-mails related to certain technologies at issue in the litigation, and that she had handed over several notebooks to producer which may also have contained relevant information, but were not produced.
One producer employee stated that his standard practice was to keep documents he thought were relevant, but that he deleted “tons of stuff” every day. Another consultant stated that he deleted all e-mails relating to one project at issue after his consulting arrangement had ended, in accordance with his standard practice.
May
12
eMag Solutions announces major enhancements to eMag Vu software suite
May 12, 2009 | Leave a Comment
eMag Solutions, LLC, has announced the release of enterprise scalable e-mail, de-duplication, reconstitution and ingestion as part of ite eMag Vu hosted enterprise software suite. The new distributed architecture efficiently de-duplicates and processes extremely large collections of e-mail and user files, representing a significant advancement in this method of data culling and reconstitution/ingestion into archiving and legal review repositories. This newest release of eMag Vu has been used to process single projects with more than 500 million e-mail messages and user files with a sustained throughput in excess of 20 terabytes per day.
Read more about the new release here.
May
1
ATTENTION E-DISCOVERY SERVICE PROVIDERS AND LAW FIRMS - Your chance to make e-discovery history
May 1, 2009 | Leave a Comment
The Sedona Conference is supporting an initiative started in 2006 by the National Institute of Standards and Technology called the Text Retrieval Conference, or TREC. The TREC 2009 Legal Track is seeking participants from the e-discovery service provider community, as well as law firms, to assist in this research effort, which is “aimed at objectively modeling the e-discovery review process for the purpose of evaluating the efficacy of a wide range of search methodologies.” New this year is the availability of the public Enron data set as the testbed collection to be used by participants.
According to the Sedona Conference, “participation in the TREC Legal Track offers an unprecedented opportunity to be at the forefront of an important movement to evaluate document review processes, create industry best practice standards and, in so doing, provide the legal community and their clients reliable information in the emerging field of large-scale document review and electronic discovery.”
This project is scheduled to get underway shortly after May 25, 2009, so time is short! For more details, see the TREC Legal Track home page, available here. The announcement by the Sedona Conference is both on the TREC Legal track web page as well as here.
Apr
25
Requestor’s failure to cooperate with producer leads to court order that requestor share costs of production
April 25, 2009 | Leave a Comment
After producer’s initial production was deemed inadequate, on December 10, 2008, producer requested additional information (presumably including search terms) so that a second ESI search could be conducted. Requestor responded on January 20, 2009, describing the shortcomings of the original search. That day, producer “again request[ed] additional search terms so that a more comprehensive ESI search could be conducted.” Id. at *2. On February 5, requestor submitted the desired search terms to producer. However, producer had already conducted a second search, based on the January 20, 2009 response.
Apr
16
Intentional destruction of emails results in monetary sanctions and possible adverse inference
April 16, 2009 | Leave a Comment
Requestor had asked producer to produce emails regarding a dinner meeting in which certain statements germane to the dispute were allegedly made. Testimony indicated that one of the parties was certain that emails regarding the dinner meeting had been exchanged. Producer did not produce any responsive documents.
Requestor therefore asked for a forensic examination of producer’s systems. Requestor engaged a forensic examiner, Midwest, to make mirror images of producer’s computer system as well as two computers used by a key player, Billups. After completing the examination, Midwest was to provide responsive ESI to producer’s counsel for review, as well as an acquisition report “detailing the server and computer data that was captured and a list of all file names extracted from the search.” Id. at *4. Requestor’s counsel was entitled to a log identifying responsive ESI.
Apr
10
Failure to adopt appropriate information management policies leads to sanctions
April 10, 2009 | Leave a Comment
One of the subjects of the motion was in connection with defendant producer ASUS’ alleged destruction of evidence. Plaintiff requestor “has no direct proof of destruction of evidence but is inferring destruction or withholding of evidence.” Id. at *14.
ASUS asserted that its “nearly complete absence of emails related to the subject of this litigation” were due to its email management and storage practices. Its “email servers are not designed for archival purposes, and employees are instructed to locally preserve any emails of long term value:”
36. Storage on ASUSTeK’s email servers is limited, and the company directs employees to download those emails they deem important or necessary to perform their job function from the company email server to their individual company issued computer.
37. ASUSTeK informs its employees that any email not downloaded to an employee’s computer are automatically overwritten to make room for additional email storage on ASUSTeK’s servers.
38. It is ASUSTeK’s routine practice that its employees download to their individual computer those emails the employee deems important or necessary to perform his or her job function or comply with legal or statutory obligations.
Id. at *25-*26.
