CASE LAW UPDATE: A discussion of key federal court decisions involving electronic discovery from 2008 to present

1. Introduction

After implementation of the e-discovery amendments to the Federal Rules of Civil Procedure in December 2006, there was much uncertainty as to how the new rules would affect parties’ discovery obligations and the discovery process, generally. In 2007, courts hit the ground running, issuing a host of decisions interpreting the new rules and defining parties’ rights and obligations thereunder. Increasingly comfortable with the technical aspects of e-discovery, and with their role as the expositors and enforcers of the federal e-discovery rules, courts in 2008 issued more e-discovery decisions than ever before touching on many different e-discovery issues. And the trend seems to be continuing in 2009. The following are some of the hot topics addressed by the courts and decisions of interest from 2008 and 2009.

Form of Production

In Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y., Nov. 21, 2008), the U.S. District Court for the Southern District of New York tackled the ubiquitous issue of metadata. The court found that although metadata is generally discoverable (so long as it is relevant and not privileged), plaintiff’s failure to initially request metadata, and its failure to demonstrate the relevance of the metadata if eventually requested, freed defendant from any obligation to produce it. Alluding to the reality that parties seek metadata in almost every case, regardless of size or complexity, Magistrate Judge Maas referred to metadata as “the new black.”

At least three recent cases demonstrate that parties requesting electronically stored information (“ESI”) should be specific in their instructions regarding production format. In Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C., Dec. 24, 2008), despite finding ambiguity in the instruction for the format of production in plaintiff’s document request, the court held that producing 35,000 hard copy pages of e-mail was simply unacceptable. The court ordered plaintiff to copy e-mails in native format onto a disk, but ordered the parties to share the costs. The court noted that while normally the cost of production is on the producing party, the vagueness of plaintiff’s initial request as to production format, and acceptance by plaintiff of some hard copy documents, was tantamount to both parties “going through the same stop sign.” As noted by the court:

This whole controversy could have been eliminated had [plaintiff] asked for the data in native format in the first place or had [defendant] asked [plaintiff] in what format it wanted the data before it presumed that it was not native. Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers’ conferring with each other on such a fundamental question as the format of their productions of electronically stored information.

Even more recently, in In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D. Ky., Feb. 2, 2009), defendant produced financial documents in .pdf and Excel format, and followed up with production in searchable .tiff format. Unsatisfied, plaintiff demanded that the documents be produced in native format. The court held that defendant had not violated Rule 34(b)(2)(E) since plaintiff had not specifically requested native format production in its request and defendant produced the documents in a “reasonably usable format.” The court ordered re-production in native format based on an earlier promise by defendant that it would produce the documents in native format if plaintiff purchased the necessary software (which it had). Since defendant had already produced the information in reasonably usable format, though, and since plaintiffs had failed to specify the format of production in their request, the court shifted the cost of the re-production to plaintiffs.

Another recent case demonstrates that a court may be unlikely to order a party to re-produce documents in their original format, including accompanying metadata, in the absence of an agreement as to the form of ESI and/or a specific request. In D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C. 2008), plaintiff filed suit against her former employer, asserting claims of gender discrimination and hostile work environment. Plaintiff filed a motion to compel pursuant to FED. R. CIV. P. 34 and also sought sanctions against the employer for its conduct during discovery. In particular, plaintiff was seeking production of a business plan and defendants’ emails in their original electronic format with accompanying metadata. Plaintiff argued that defendants were obligated to produce the business plan and e-mails in their original format, because Rule 34 only permits the production of documents outside of their original format if necessary, and no such necessity existed in this case. The court rejected plaintiff’s request, in part, because plaintiff failed to specify the form or forms of the documents in her discovery requests.

Parties seeking to inundate their adversaries with unlabeled reams of paper should think twice as courts will likely enforce the production format requirements of Rule 34. This issue arose in G.P. Industries, L.L.C. v. Bachman, 2008 WL 1733606 (D. Neb., April 10, 2008), in which the court found unacceptable defendant’s production of approximately 3,000 unstapled pages of documents without identifying which documents were responsive to which demands. After defendant’s assertion that the documents were produced as kept in the ordinary course of business was called into doubt by a witness, the court ordered defendant to comply with Rule 34 and re-produce documents as kept in the ordinary course of business or in organized and labeled fashion corresponding to plaintiff’s demands.

A valuable lesson regarding timing of objections to discovery requests can be taken from Cason-Merenda v. Detroit Medical Center, 2008 U.S. Dist. LEXIS 51962 (E.D. Mich., July 7, 2008). In that case, defendant incurred the costs of producing in plaintiff’s requested format and only afterwards sought cost-shifting from the court. Since defendant’s conduct effectively denied plaintiff the right to forego the requested discovery or to compromise on its request, the court denied defendant’s application for cost shifting.

At least one court has held that where no specific duty to preserve exists, a party who continuously updates an electronic record has no obligation to preserve a copy of that record as it exists every time it is updated. In Dorn-Kerri v. S.W. Cancer Care, 2008 WL 3914458 (S.D. Cal., Aug. 18, 2008), defendant was unable to produce account reports as they existed at the relevant times because the software that manages the account reports allows for continuous updating as bills are received and does not save earlier versions. The court held that since the requested documents do not exist, they cannot be in the “possession or control” of a party, and thus cannot be produced for inspection. Defendant had met its discovery obligations by searching for hard copies of the records, which, it turned out, had been routinely shredded before any duty to preserve arose.

Forensic Examinations

Several recent decisions illustrate that an adversary’s forensic examination of ones computer can often be avoided by simply exercising prudence and common sense. In Canon USA, Inc. v. SAM, Inc., 2008 WL 2522087 (E.D. La., June 20, 2008), after defendant responded to discovery demands that it was unable to locate requested documents, defendant’s owner testified at deposition that he “forgot about” a server in his home which might contain relevant e-mails. He admitted that he did not search the server but asked his wife and son to do so “when they can.” Citing the “lackadaisical treatment” of plaintiff’s discovery requests, the court ordered a forensic examination of defendant’s home server with defendant to bear the costs.

Courts will not hesitate to shift the cost of a forensic examination to a party whose discovery abuses created the need for a forensic examination. In Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 (D.D.C., July 7, 2008), the court concluded that defendant’s flagrant discovery abuses, including a failure to deactivate network maintenance tools that automatically deleted ESI well after the duty to preserve had been triggered, warranted forensic examination of defendant’s computers. Moreover, the court held defendant responsible for the cost of the forensic examination, as it explained that “the need … is directly attributable to what was and was not done by [defendant] to preserve electronically stored information.”

In Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio, Apr. 28, 2008), a forensic examination of plaintiff’s computer was ordered where the computer was the only source of requested relevant information, viz., plaintiff’s visits to defendant’s website. The court issued a detailed order requiring each party’s forensic expert to make mirror images of plaintiff’s hard drive, with each party initially bearing its own costs. However, a forensic examination is not typically permitted absent some egregious conduct by one of the parties. This was demonstrated in DaimlerTruck North America, L.L.C. v. Younessi, 208 WL 2519845 (W.D. Wash., June 20, 2008). The court in that case held that a forensic examination of a non-party’s computer was not warranted where there were no allegations of relevant documents being destroyed or not produced, and the non-party had a legitimate concern for the privacy of confidential information and trade secrets.

One court has held that sanctions are not guaranteed when a forensic review demonstrates that a party has deleted information from their hard drives after a suit has been filed. In Maxpower Corp. v. Abraham, 2008 WL 1925138 (W.D. Wis., April 29, 2008), a business tort case against former employees, plaintiff obtained an order allowing it to inspect the former employees’ laptop hard drives. The forensic examination revealed that the former employees had deleted information from the hard drives after the suit had been filed. However, the former employees presented evidence that wiping of their laptops was for “maintenance purposes.” The court denied plaintiffs’ motion for sanctions, as it concluded that there was insufficient evidence to support that the wiping of hard drives constituted deliberate spoliation.

Where the scope of a forensic examination is at issue, courts have attempted to strike a balance in order to minimize the burdens on the parties. For example, in Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev., Mar. 28, 2008), plaintiff objected to a forensic examination of her home computer citing concerns of privacy, privilege and confidentiality. The court found that the burden on plaintiff could be minimized and ordered defendant to bear the cost of the forensic examination by a forensic expert approved by the court. Further, plaintiff would not be deemed to have waived any privilege by disclosure of confidential information to the examiner.

Search Methodology

Must a party retain an expert to develop and explain that party’s position regarding electronic search methodology? The court in Equity Analytics, L.L.C. v. Lundin, 248 F.R.D. 331 (D.D.C. 2008), answered in some cases, yes. In that case, the court was faced with defendant’s request for proposed search terms in connection with a forensic examination of its computer to weed out privileged and confidential data, and an objection by plaintiff to the effect that the proposed search terms were inadequate. Recognizing that the technical complexities involved in determining whether a particular search methodology, such as search terms, would be effective, requires knowledge beyond the ken of a lay person; the court ordered plaintiff to submit an affidavit from its forensic expert explaining why the proposed search terms were inadequate and explaining in detail how the search was to be conducted.

In D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. 2008), discussed supra, Magistrate Judge Facciola addressed plaintiff’s concerns regarding defendants’ production. Specifically, plaintiff: (1) submitted testimony from an expert concluding that defendants failed to produce e-mail and other ESI; (2) provided testimony that defendants had not produced all ESI; and (3) argued that defendants failed to comply with their discovery obligations by scrapping her computer. The court held an evidentiary hearing to address these concerns. As a result, defendants agreed to permit plaintiff’s expert to search their computer systems or individual computers for ESI. However, Judge Facciola explained that defendants were “unfairly and irrationally limiting the scope and potential results of the search” and rejected defendants’ proposed restrictions.

Sanctions

Several key decisions were handed down in 2008 concerning sanctions for e-discovery abuses. The decisions demonstrate, once again, that parties can often avoid harsh consequences by merely exercising common sense and reasonable prudence.

For instance, in Nursing Home Pension Fund v. Oracle Corp., 2008 U.S. Dist. LEXIS 66740 (N.D. Cal., Sept. 2, 2008), plaintiffs sought sanctions against Oracle including a default judgment and an adverse inference jury instruction, based on alleged spoliation of various categories of ESI. Plaintiffs alleged that e-mails from “key players” were destroyed, notwithstanding that many of these e-mails were discovered in other employees’ files that were produced. The court determined that an adverse inference jury sanction was appropriate since e-mails were destroyed after suit was filed, and those found in other employees’ files were relevant, making it impossible to know whether additional undisclosed e-mails were also deleted.

Rule 26(g)(2) provides that every discovery response must be signed by an attorney and that the attorney’s signature constitutes a certification that such responses were made “to the best of the signer’s knowledge, information, and belief, formed after a reasonable inquiry” that the response is complete and/or the objection is appropriate. In fact, Rule 26(g)(3) requires the imposition of “an appropriate sanction” on the attorney if a discovery response is not formed after a reasonable inquiry. Rule 26(e) requires that parties timely supplement discovery responses they learn are incomplete or incorrect. These two rules mandate that regardless of whether a case involves ESI, counsel must become involved early in the discovery process and continue to disclose documents as new information is discovered. This lesson was driven home in the highly publicized decision in Qualcomm, Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal., Jan. 7, 2008). In Qualcomm, the court imposed sanctions against plaintiff related to its conduct during discovery. Specifically, in this patent infringement action, plaintiff denied the existence of certain key communications, and plaintiff’s attorneys advised its adversary and the court that no documents existed evidencing such communications. However, before trial, plaintiff discovered e-mails of these relevant communications, but plaintiff’s attorneys did not disclose these documents nor did plaintiff conduct a search for additional documents. At trial, plaintiff’s attorneys argued that no such communications existed. A subsequent witness testified as to relevant e-mails, and 46,000 pages of undisclosed relevant electronically stored documents were later discovered. The court imposed severe sanctions, including an order that plaintiff pay defendant’s attorneys’ fees of approximately $8.5 million.

The court in Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360 (N.D. Ga. 2008), sanctioned defendant for its destruction of a relevant e-mail. Defendant had a 30-day e-mail retention policy, and a preservation instruction was issued only 12 days after the subject e-mail had been sent. Since the e-mail should have been preserved, the court found that defendant was at least minimally culpable. However, because plaintiff obtained the e-mail elsewhere, the court found that prejudice could be cured by an adverse inference instruction, as opposed to outright dismissal.

An adverse inference sanction was also granted in Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y., Sept. 8, 2008), where defendant failed to produce records, claiming that since the records could not be recovered from a computer, he discarded the computer as unusable. Although the record was unclear on whether the data was corrupted and when the computer was discarded, the court found that the computer should have been preserved, it was destroyed with a culpable state of mind, and the destroyed data was relevant to plaintiff’s claims.

In Nucor Corp. v. John Bell and SeverCorr, L.L.C., 2:06-CV-02972-DCN (D.S.C., Feb. 1, 2008), the court held that plaintiff’s former employee engaged in sanctionable spoliation by willfully and deliberately discarding a thumb drive which the former employee admitted that he had used to download information on plaintiff’s production process, so that plaintiff could not obtain it. Moreover, the court concluded that the former employee had a duty to preserve the thumb drive because he anticipated litigation prior to destroying it. Accordingly, the court granted plaintiff’s motion for sanctions and held that an adverse inference instruction was warranted.

Not surprisingly, courts hesitate to impose sanctions when documents are destroyed pursuant to the normal course of an otherwise appropriate document management policy. Such was the case in Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal., Aug. 6, 2008). In that age discrimination suit, plaintiff sought production of defendant’s tachograph records, which show a vehicle’s speed and the length of time it is moving or stationary. In response, defendant informed plaintiff that its policy was to retain these records for only a limited period of time, but agreed to produce all responsive records located after a reasonable search. The court denied plaintiff’s motion for sanctions, finding that plaintiff was not seriously prejudiced by the destruction of records in the normal course of defendant’s retention protocols, particularly since the records had no bearing on the claims at issue.

In Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal., Aug. 12, 2008) the court addressed plaintiffs’ request for terminating evidentiary and monetary sanctions based upon defendants’ alleged spoliation of evidence. Plaintiffs maintained that defendants’ destruction of certain clearly relevant documents impacted plaintiffs’ ability to meet their burden of proving patent infringement. The court agreed that defendants’ discovery abuses were extreme, noting that the misconduct was “among the most egregious this court has seen.” Accordingly, the magistrate judge imposed a monetary sanction of fees and costs associated with the misconduct and recommended an adverse inference jury instruction. However, the court did not recommend terminating sanctions because of the lack of evidence that defendants engaged in deliberate spoliation.

It can be a challenge for litigants seeking sanctions for spoliation of ESI to demonstrate that the spoliated evidence was relevant to the issues in the case, an important element of the sanctions analysis in most jurisdictions. For instance, in Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008), a defamation case, plaintiff demonstrated that defendant corporation and its CEO (also a defendant), failed to preserve relevant ESI. In particular, defendant CEO’s laptop was not first imaged and preserved until more than two years after the complaint was filed. Defendant also failed to back up its servers until at least seven months after its obligation to preserve arose. The CEO was the sole company employee who downloaded his emails from the company server onto his laptop on a daily basis, thereby removing them from any corporate backup protocols. Accordingly, the court concluded that defendants were “grossly negligent” in preservation efforts and, as a sanction, ordered defendant CEO to make his laptop available for forensic examination and the corporate defendant to restore backup tapes at their expense. However, the court concluded that an adverse inference was not warranted because plaintiff could not specifically show what documents (or types of documents) had been destroyed and, therefore, whether they were relevant to the issues in the case.

A recent decision on the subject of sanctions was handed down in Micron Tech., Inc. v. Rambus Inc., 2009 WL 54887 (D. Del., Jan. 9, 2009), a case arising from Micron’s alleged infringement of Rambus’ patents and one of a long line of key e-discovery decisions involving Rambus and these patents. The court found that litigation was reasonably foreseeable, and thus Rambus’ duty to preserve relevant documents arose, in December 1998, when Rambus’ Vice President of Intellectual Property articulated a time frame and a motive for implementation of Rambus’ patent infringement litigation strategy. However, in August 1999, Rambus held a “Shred Day” in which company employees shredded approximately 300 boxes of documents. In December 2000, another 480 boxes of documents were destroyed in connection with an office move. At a bench trial on the issue of spoliation, the court found clear and convincing evidence that documents were intentionally destroyed, i.e., destroyed in bad faith. Finding that the destroyed documents were the type which would be relevant to the litigation, the court found substantial prejudice to Micron and concluded that the appropriate sanction was to declare the patents in suit unenforceable against Micron.

Information in Control of Third Parties

In furtherance of the goals of liberal, practical-minded discovery, courts in 2008 enforced parties’ obligations to produce documents which, although not in their physical possession, were within their control.

Several courts have held that a “legal right to obtain” records is all that is necessary to obligate a party to secure, preserve and ultimately produce them. This was the holding in Flagg v. City of Detroit, 2008 WL 3895470 (E.D. Mich., Aug. 22, 2008), in which defendant moved to quash plaintiff’s subpoena of defendant’s internet service provider (“ISP”) for relevant records and refused to authorize the release of the records. Finding that documents are in control of a party where the party has a legal right to obtain them, and that defendants had the right to secure the requested internet service provider data from that third party, the court ordered defendant to provide necessary information, including PIN numbers, to allow access to defendant’s account.

Similarly, in Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla., Aug. 29, 2008), defendant failed, in responding to plaintiff’s interrogatories, to identify a Yahoo! e-mail account that he had used. Defendant contended that he did not identify this e-mail account because he could not retrieve the e-mails. However, documents from an unrelated case revealed that the non-party ISP, Yahoo!, could and would retrieve these e-mails at defendant’s request and that defendant was aware of this. The court concluded that defendant’s failure to identify the Yahoo! account earlier and his representation that e-mails were irretrievable constituted sanctionable conduct. The defendant was ordered to make all possible efforts to obtain deleted e-mails from Yahoo! The court further explained that sanctions would depend on Yahoo’s ability to retrieve these e-mails and whether an inability to do so was caused by defendant’s failure to identify the Yahoo! account earlier.

Finally, in Nursing Home Pension Fund v. Oracle Corp., 2008 U.S., Dist. LEXIS 66740 (N.D. Cal., Sept. 2, 2008), the court held that defendants failure to secure and preserve notes created and maintained by a non-party author who had collaborated with Oracle’s CEO Larry Ellison on a book, was sanctionable. Holding that an adverse inference instruction was warranted, the court emphasized that despite the fact that the notes were created and maintained by the non-party author, Mr. Ellison’s contract with the author clearly provided Ellison with rights to obtain the notes at any time, and those rights should have been exercised as part of Oracle and Ellison’s evidence preservation efforts.

Privilege Waiver

In the category of “no good deed goes unpunished,” one recent case instructs that a party runs the risk of waiving privileges when it undertakes a critical self-analysis to investigate lapses in its preservation efforts. In In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del., June 4, 2008), the court entered an order compelling Intel to produce notes of its counsel’s investigation interviews of designated employees concerning Intel’s compliance with its evidence preservation obligations. In anticipation of a large electronic production in this antitrust litigation, Intel embarked on an extensive preservation program. Approximately a year after its commencement, Intel discovered lapses in the program and employed a law firm to investigate the same. The firm interviewed more than 1,000 employees and confirmed certain lapses in Intel’s preservation program. Intel informed plaintiff of lapses and compliance efforts and provided a detailed report. After plaintiff moved for production of underlying interview notes related to the law firm’s investigation and Intel claimed privilege, the court concluded that notes related to the law firm’s investigation should be produced, as the attorney-client privilege was waived when Intel opened the door by its critical self-analysis. Moreover, the court concluded that Intel had waived work product protection and that non-core (factual) work product could be separated from core work product.

We have also seen that a party that inadvertently discloses privileged material risks waiving privileges where it can not demonstrate that its efforts to ferret out such documents were reasonable. In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status. In reviewing defendants’ production, plaintiff’s counsel discovered documents that were potentially privileged or protected by the work-product doctrine. The court concluded that defendants waived the attorney-client privilege and work product protections as to the documents because, among other problems, it could not explain the methodology of its keyword search for privileged documents, or establish that it conducted a quality control or sampling in the search process.

The landscape of privilege waiver with massive electronic productions may be significantly altered by recent rule making legislation. On September 19, 2008, President Bush signed into law a Bill enacting new Federal Rule of Evidence 502. This Rule provides, among other things, that inadvertent disclosure does not effect a privilege waiver where the waiver was inadvertent, the producing party took reasonable steps to prevent disclosure, and the party attempted to rectify the error. The Rule also establishes that an order of a federal court providing that a privilege is not waived where privileged documents are produced is binding in any other federal and state proceeding. This is further encouragement for parties to enter into so-called “clawback” agreements governing inadvertent disclosure.

At least one court has already addressed Rule 502. In Rhoads Indus., Inc. v. Building Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa., Nov. 14, 2008), the court conducted a detailed waiver analysis under both Rule 502 and the traditional rule when plaintiff discovered that it had inadvertently produced approximately 800 electronic documents that were included in its privilege log. Noting that the reasonableness of Rhoads’s privilege review was the crux of the dispute, the court concluded, “that once the producing party has shown at least minimal compliance with the three factors in Rule 502, but ‘reasonableness” is in dispute, the court should proceed to the traditional five factor test.” Although the court found that the majority of factors favored defendants, it ultimately held that the “interest of justice factor” warranted a finding that the privilege had not been waived. Nonetheless, the court’s caution is worth noting: “An understandable desire to minimize costs of litigation and to be frugal in spending a client’s money cannot be an after the fact excuse for a failed screening of privileged documents…”

Discoverability of Information Management Policies

In Cunningham v. The Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo., July 1, 2008), plaintiff, unsatisfied with the relatively few e-mails produced in response to its demands, served a Rule 30(b)(6) deposition demand seeking a witness with knowledge concerning storage, preservation and back-up of relevant e-mails. Since plaintiff was unable to reference any specific missing e-mails, however, the court held that plaintiff had not met its burden of demonstrating the relevance of the 30(b)(6) inquiry, or that the inquiry was not redundant. Notably, the court refused to issue a blanket protective order on any inquiry into defendant’s discovery response activities based on non-specific claims of attorney-client privilege.

Undue Burden

Parties should be prepared to support claims of undue discovery burden with details. In City of Seattle v. Prof’l Basketball Club, L.L.C., 2008 WL 539809 (W.D. Wash., Feb. 25, 2008), defendant produced approximately 150,000 e-mails of two managers, and objected to production of e-mails from six other managers as unduly burdensome based on high expense and low relevance potential. The court granted plaintiff’s motion to compel the requested e-mails finding that defendant had not adequately demonstrated undue burden. Defendant’s “bald assertion” that producing such e-mails would “increase the e-mail universe exponentially” and would not likely be relevant was found to be insufficient.

In Citizens for Responsibility and Ethics in Wash. v. Exec. Office of President, 07-1707 (D.D.C., Jan. 7, 2008), plaintiff, a citizen watchdog organization, claimed that millions of e-mails were deleted from White House servers. The court granted a temporary restraining order requiring the White House to preserve all back-up media that might contain deleted information responsive to plaintiff’s request. Plaintiff then moved for expedited discovery. Magistrate Judge Facciola noted that to the extent that missing e-mails were not contained on preserved back-ups, expedited discovery would be necessary since those e-mails might be currently retrievable but are likely to be deleted or overwritten with the passage of time. In order to determine whether expedited discovery was necessary, Judge Facciola issued further instructions requiring the White House to answer four questions:

1. 1. Are the back-ups catalogued, labeled or identified to indicate the period of time they cover?
   2. Are the back-ups catalogued, labeled or identified to indicate the data contained therein?
   3. Do the back-ups contain e-mails written and received between 2003 and 2005?
   4. Do the back-ups contain e-mails said to be missing that are the subject of the lawsuit?

Enhanced Duty of Cooperation

In July 2008, the Sedona Conference released its Cooperation Proclamation in an attempt to help shift the culture of litigation discovery from “adversarial conduct to cooperation.” While the Cooperation Proclamation recognizes that lawyers are retained to be “zealous advocates” for their clients, it also urges lawyers to take note of the fact that “they bear a professional obligation to conduct discovery in a diligent and candid manner,” and stresses that zealous advocacy is not inconsistent with cooperation in the discovery process. Numerous federal judges have wholeheartedly endorsed the ideology shift outlined in the Cooperation Proclamation, and have urged parties to recognize the benefits of working together in discovery disputes.

For instance, in Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), plaintiffs filed several motions to compel supplemental responses to their discovery requests after defendants allegedly failed to adequately respond. Magistrate Judge Paul Grimm addressed plaintiffs’ motions to compel and found violations of FED. R. CIV. P. 26, 33, and 34 based upon defendants’ failure to state objections with specificity and their apparent failure to conduct a “reasonable inquiry” before responding to plaintiffs’ requests. Moreover, Judge Grimm endorsed the Sedona Conference’s Cooperation Proclamation and explained that “[c]ourts repeatedly have noted the need for attorneys to work cooperatively to conduct electronic discovery, and sanctioned lawyers and parties for failing to do so.” In this connection, the court ordered the parties to meet “to quantify a workable ‘discovery budget’,” to consider phased discovery with initial production of the least burdensome or expensive sources of information, and to present the court with a status report in a format required by the court identifying any unresolved issues.

In Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C., Dec. 24, 2008), mentioned above, the court admonished the parties for their failure to cooperate and the wasteful motion practice that resulted, stating: “This whole controversy could have been eliminated had [plaintiff] asked for the data in native format in the first place or had [defendant] asked [plaintiff] in what format it wanted the data before it presumed that it was not native.” The court further noted that “the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers’ conferring with each other on such a fundamental question as the format of their productions of electronically stored information.”

Conclusion

The section on Enhanced Duty of Cooperation is a fitting place to end this Case Law Update. The emphasis placed by courts on cooperation of the parties in the discovery process is a readily discernable theme which runs throughout the various topics mentioned above. As the corpus of case law on e-discovery issues grows, it has become increasingly evident that parties who fail to cooperate with their adversaries in good faith in the discovery process subject themselves to additional costs and burdens which courts will not hesitate to impose. Indeed, as seen from some of the above decisions, judges also will not hesitate to openly reprove parties who fail to cooperate. All indicators point to this trend continuing in 2009, and litigants would do well to take heed.