Electronic Discovery Bulletin September 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.

Litigation Hold Notices and Attorney-Client Privilege

The general rule is that litigation hold notices are protected by attorney-client privilege and work product doctrine. For example, in Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116 (N.D. Ga. 2007), plaintiff Gibson sought production of the document hold notice Ford sent to its employees, including the specific list of materials the employees were required to preserve. The court found that such notices are often drafted by counsel, existing solely to assure compliance, and were therefore protected by attorney-client privilege and work-product doctrine.

However, although the information contained in the notice may be protected, some courts have found the requesting party was entitled to know the date of issue and recipients of the notice, as well as the steps taken. See Cannota v. Wyndham Worldwide Corp., no. 2:10-cv-68-PMP-VCF (D. Nev. 2011).

Despite the foregoing, please be aware that the privileged disposition of litigation hold notices may be abandoned if there is evidence of spoliation. The case most relied upon for this principle is Major Tours, Inc. v. Colorel, no. 05-3089 (D. N.J. 2009), in which defendant Colorel failed to issue a litigation hold notice until four years after the duty to preserve arose. The court held that litigation hold letters are generally protected from discovery unless a preliminary showing of spoliation is made. Note that only a preliminary showing was required, and a party did not have to prevail on a separate spoliation motion in order to compel production of the notice. Likewise, the privilege may also be lost if the proper litigation hold procedures are not followed. In U.S. ex rel. Barko v. Halliburton Co., no. 1:05-CV-1256 (D.D.C. 2014), the court found Halliburton’s litigation hold notices to be discoverable because they lacked confidentiality instructions and were disseminated too widely to maintain the attorney-client privilege. As these cases illustrate, the notice privilege is not absolute, and when implementing litigation holds, attorneys should be cognizant of the circumstances which might affect its privileged status.

Sedona Publishes Commentary on E-Discovery Process

The Sedona Conference published the public comment version of its Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process. It addresses the tension between party-controlled discovery and the need for accountability in the discovery process by providing a series of reasonable expectations and practical guidance. The goal is to reduce the cost and burden typically associated with discovery today by helping litigants prepare for, and hopefully avoid, challenges to their chosen discovery processes, as well as provide guidance to courts when they are called upon to examine a party’s discovery conduct. The Commentary may be accessed from https://thesedonaconference.org.

Tips on Searches With Wildcards

While a poorly constructed wildcard can retrieve thousands of hits, many of which are irrelevant to the search, a wildcard can have the opposite problem, or as some may say, the wildcard is not “wild” enough. There are some sites that can help in finding the variations of a particular word. Morewords.com is a site that can provide a list of all the words that begin with a specific search string, enabling you to choose the variations you want and incorporate them into the search instead of the wildcard. Dictionary.com enables the user to enter a word and find all of the uses for it, enabling you to choose those relevant to your search.

EDRM Acquired by Duke Law

The Electronic Discovery Reference Model (EDRM) announced it has been acquired by Duke University School of Law, which hopes to gain resources and expand the Law School’s Center for Judicial Studies. EDRM co-founder Goerge Sochs will remain with EDRM after the transition, while co-founder Tom Gelbmann will work on the transition before retiring. In addition, Tom Hnakowski, former chief of the Magistrate Judges Division of the Administrative Office of the U.S. Courts, will join the Center to manage daily EDRM operations.

Case Law Digest on Cases After 2015 Amendments

6 Months of Case Law Under the New FRCP, by ediscovery provider Kroll Ontrack, gives a six month overview of cases which have had the most impact as the result of the 2015 rule amendments. The Digest is free, but contact information is required before downloading. It may be accessed at http://www.ediscovery.com/frcp-case-law-digest/.

Interview: Judge Elizabeth Laporte on Career and E-Discovery

In this article, Judge Elizabeth Laporte, U.S. Magistrate Judge for the Northern District of California, discusses her career and the impact of the 2015 ediscovery rules amendments. The article may be accessed at http://www.legaltechnews.com/id=1202765846752/.

Case Law: Data Provided is Adequate Substitute for Requested Document

In Clouser v. Golden Gate National Senior Care, LLC, no. 15-33 (W.D. Pa. Aug. 9, 2016), Sylvia Clauser sued Golden Gate National Senior Care (“Golden Gate”) for the wrongful death of decedent, who was an Alzheimer’s patient living at one of Golden Gate’s facilities. Clauser served interrogatories and requests for production upon Golden Gate, to which it responded. Clauser then requested a supplemental response; Golden Gate did not comply; and Clauser filed a motion to compel. Clauser sought a complete copy of the audit trail for the decedent’s medical records, including information about when his chart was accessed and by whom. Clauser argued the audit trail was relevant because part of her claim rested on her allegation that the chart was falsely documented. Golden Gate argued they are not required to maintain an audit trail as their records are an amalgam of multiple programs by different vendors, and offered to produce various reports they claimed would provide Clauser with the same information. The court determined that although Clauser specifically requested an audit trail, the information Golden Gate offered in its stead contained the information sought, and the motion was denied.

Case Law: Producing Emails in Poor Format Results in Do-Over

In AKH Company, Inc. v. Universal Underwriters Insurance Co., no. 13-2003 (D. Kan. Aug. 11, 2016), AKH filed for a declaratory judgment based upon a dispute over insurance coverage. During discovery Universal Underwriters Insurance (”Universal”) submitted a 4th request for production for AKH’s communications with a third party; AKH objected on the basis of vagueness, lack of relevance and confidentiality, but eventually produced a 10-page document. Universal moved to compel a more complete response, arguing that AKH’s email formatting was a copy-paste job and not a production of original emails in date order. The court granted the motion, holding that AKH’s argument about relevance was moot, since it did produce the information, although in a poor format.


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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