Electronic Discovery Bulletin April 2016

The following is a compendium of articles and case law that may be of interest to our AG offices that are dealing with electronic discovery issues. Neither the National Association of Attorneys General nor the National Attorneys General Training & Research Institute expresses a view neither as to the accuracy of the articles nor as to the position expounded by the authors of the hyperlinked articles.

Two Sedona Conference Commentaries on Patent Issues Released

The Sedona Conference released the public comment version of Working Group 9’s Commentary on Case Management of Patent Damages and Remedies Issues: Proposed Model Local Rule for Damages Contentions. The Commentary revises the April 2014 publication, recommending that the parties exchange a set of damages contentions in advance of both the close of fact discovery and of the filing of damages expert reports. The Commentary notes that such damages contentions would provide greater clarity on damages theories and potential disputes earlier than tends to occur presently, thus allowing for the consideration of motions related to the admissibility of damages theories and evidence during the pretrial period, rather than on the eve of trial. The Commentary may be accessed at thesedonaconference.org. Comments should be sent to comments@sedonaconference.org by July 1, 2016.

Also released was the public comment version of Working Group 10’s Commentary on Patent Litigation Best Practices: Chapter on Patent Mediation. The Commentary notes that parties are increasingly turning to mediation as a means of resolving patent litigation at an early stage in the proceedings. It presents a series of best practices covering topics such as the timing of making a decision to mediate, the process of selecting a mediator, the task of preparing for a mediator, the unique issues of confidentiality in patent mediations and the conduct of the mediation session itself. The Commentary may be accessed at thesedonaconference.org. Comments should be sent to comments@sedonaconference.org by July 1, 2016.

Advice on How to Design a Document Retention Policy

This article by e-discovery provider Complex Discovery makes the case for data minimization, arguing that retaining the least amount of personal information necessary for an organization to function means that there is less that the organization needs to protect and less opportunity for the information to be lost or stolen. The article may be accessed at https://www.complexdiscovery.com.

Free Webinar: Optimizing Your FOIA Request Process

This webinar, scheduled for May 11, 2016 at 1 pm EST, will offer practical suggestions on how agencies can proactively prepare for FOIA and Public Records Act requests and enable predictable discovery costs. The presenters, Johannes Scholtes and Paul Gettmann from ZyLAB, will address how to utilize a workflow tool to support the FOIA/Open Records Act process of review and exceptions; maintain logs on how disclosure is made; estimate page count of disclosure before production and produce in open format (PDF) and NARA accepted format. Register at www.aceds.org/practical-online-workshop-optimizing-your-foia-request-process/.

Another First for Predictive Coding: Approved by English High Court

In Pyrrho Investments Ltd v. MWB Property Ltd, the Master gave official judicial authorization to use predictive coding in High Court proceedings. The Master stated that predictive coding was just as accurate, if not more so, than a manual review using keyword searches. The full judgment may be accessed at www.edisclosureblog.co.uk/wp-content/uploads/2016/02/predictive-coding-full-judgement.pdf.

Free Webinar: Preserving and Collecting New Data Types

This webinar from ediscovery provider Exterro, available on demand, notes that data no longer resides just on email servers or your laptop or mobile phones. Data resides in the cloud, in apps, on social media and in your watch or on your fitness tracker. The webinar addresses such questions as what to do about new data forms, such as emojis, gmail and instant messages, and what does the court expect us to preserve when it comes to these new data types. The webinar is available at www.exterro.com but note that registration is required.

Case Law: Rule 37(e) and Text Messages

In Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., no. 14-cv-62216 (S.D. Fla. Mar. 22, 2016), the U.S. District Court for the Southern District of Florida denied plaintiff’s motion for sanctions. The case focuses on text messages that were not preserved by the defendant because he failed to turn off the function on his cell phone that automatically deletes text messages after 30 days, and he had also replaced his phone twice during the course of the litigation. In applying the new amended Rule 37(e), the court first found that the plaintiff suffered no prejudice because the text messages between defendant and another individual had been produced by a third party. Further, the court found there was no “intent to deprive” under the Rule, and denied the motion.

Case Law: Emails Not Preserved During Provider Switch

In Core Laboratories LP v. Spectrum Tracer Services, LLC, no. 11-1157 (W.D. Ohio Mar. 7, 2016), the U.S. District Court for the Western District of Ohio granted the motion for sanctions only as to emails not preserved during a provider switch. In its motion for spoliation sanctions, the plaintiff identified three instances where defendants allegedly destroyed relevant information: 1) lost emails of correspondence between defendant and a third party; 2) deleted computer files from one of defendant’s employee’s hard drive; and 3) wiped files from another employee’s computer. Defendant responded that the plaintiff had not identified any relevant information contained therein nor had it claimed any prejudice to their case. The court disagreed, finding that plaintiff had shown it was prejudiced in not having access to the emails. The court further found that defendant took steps to change its email service provider to ensure every email was captured to comply with the requirements of the suit, but the court found it was not unreasonable for defendant to have also taken steps to ensure that any emails prior to switching over to its new provider were saved. The court determined that an appropriate sanction would be an adverse inference instruction presuming that any potential communications lost due to the defendant changing email providers were unfavorable to defendant. As to the information lost from the employee’s computers, the court found the plaintiff suffered no prejudice as a result and denied sanctions.

Case Law: Public Records Act Request for Email Logs

In Paff v. Galloway Township, no. A-0125-14T4 (N.J. Super. Ct. App. Div. Apr. 18, 2016), plaintiff Paff sought email logs from defendant Galloway Township (“the Township”) pursuant to the Open Records Act, N.J.S.A. 47:1A to 13. Speicifcally, he sought an itemized list of all emails sent between the Clerk and the Township’s Chief of Police between June 3 and June 17, 2013, including the sender, recipient, date and subject of the emails. The Clerk denied the request, arguing he was under no obligation to create such as list. Paff sought a show cause order to force the Township to provide the data; the trial court ordered the Township to create and produce the record, and the Township appealed. The Superior Court said the threshold question was whether Paff requested “government records,” noting that prior case law has held that the statute allows requests for records, not information. Paff argued that his request would only require a simple computer search which would not be creating a new record, but rather was a simple retrieval of records kept electronically. The Township argued the log would be an independent compilation of metadata, and the Township was not required to assemble a new list and thereby create a new document. The court agreed with the Township that the email log was not a government record under the Act and reversed.


Hedda Litwin is the Editor of E-Discovery Bulletin and may be reached at 202-326-6022. The E-Discovery Bulletin is a publication of the National Association of Attorneys General. Any use and/or copies of this newsletter in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in this publication. For content submissions or to contact the editor directly, please e-mail hlitwin@naag.org.

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