| RESOURCES |
The Sedona Conference® Working Group on Electronic Document Retention and Production publication
regarding electronic document productions, "The Sedona Principles: Second Edition (2007)". The
Second Edition includes a handy chart on page 5 which cross-references to the amended Federal Rules of
Civil Procedure, as well as citations to leading case law and court rules. The publication is available for free
download at....
http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf
regarding electronic document productions, "The Sedona Principles: Second Edition (2007)". The
Second Edition includes a handy chart on page 5 which cross-references to the amended Federal Rules of
Civil Procedure, as well as citations to leading case law and court rules. The publication is available for free
download at....
http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf
Review the text of the March 2, 2007 Order of USDC, District of Colorado Magistrate Judge Craig B.
Shaffer in Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., et al. imposing monetary sanctions relating to
failure to preserve electronic evidence, and detailing issues regarding obligations of "The Litigation Hold".
(CLICK HERE)
Shaffer in Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., et al. imposing monetary sanctions relating to
failure to preserve electronic evidence, and detailing issues regarding obligations of "The Litigation Hold".
(CLICK HERE)
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Review the text of the April 19, 2007 Order of USDC, District of Colorado Magistrate Judge Michael J.
Watanabe in Metro Wastewater Reclamation District v. Alfa Laval, Inc. granting defendant's Motion to Compel
electronic records where plaintiff argued production of same would be too costly. (CLICK HERE)
Watanabe in Metro Wastewater Reclamation District v. Alfa Laval, Inc. granting defendant's Motion to Compel
electronic records where plaintiff argued production of same would be too costly. (CLICK HERE)
December 1, 2006 Federal Rules of Civil Procedure (CLICK HERE)
| INADVERTENT PRODUCTION OF METADATA |
| STATE ISSUED GUIDELINES & COURT RULES RE: DISCOVERY OF ESI |
| USDC EDISCOVERY CASELAW - OTHER JURISDICTIONS |
| USDC EDISCOVERY CASELAW - COLORADO |
| FEDERAL RULES OF CIVIL PROCEDURE / SEDONA PRINCIPLES |
| Have a resource worth posting? Submit same to kathleen.wener@bryancave.com! |
| GLOSSARY OF ELECTRONIC DISCOVERY TERMS |
| EDRM's glossary of electronic discovery terms: http://www.edrm.net/resources/glossary |
| ONLINE ELECTRONIC DISCOVERY RESOURCES |
www.ediscoverylaw.com
www.fiosinc.com/events/webcasts/webcast_archive.asp
www.krollontrack.com
www.electronicdiscovery.info/
http://e-discoveryteam.com/
www.discoveryresources.org
www.craigball.com
www.floridalawfirm.com
www.fiosinc.com/events/webcasts/webcast_archive.asp
www.krollontrack.com
www.electronicdiscovery.info/
http://e-discoveryteam.com/
www.discoveryresources.org
www.craigball.com
www.floridalawfirm.com
Listing of states that have enacted electronic discovery rules (CLICK HERE)
Colorado Bar Association Ethics Committee Formal Opinion 119: Disclosure, Review and Use of Metadata,
adopted 05/17/08 CLICK HERE
adopted 05/17/08 CLICK HERE
The Sedona Conference® Cooperation Proclamation. July 2008. A call to promote
cooperation in discovery, particularly ediscovery. Purpose is to promote and drive a change in the culture
of discovery to one of heightened cooperation. (CLICK HERE)
cooperation in discovery, particularly ediscovery. Purpose is to promote and drive a change in the culture
of discovery to one of heightened cooperation. (CLICK HERE)
Review the text of the November 13, 2007 Order of USDC, District of Colorado Magistrate Judge Boyd
Boland in Garcia v. Berkshire Life Insurance Company of America granting, in part, defendant's Motion to
Compel plaintiff's counsel to produce electronic data. "Technical incompetence with respect to computers..."
found not to be a viable argument for failure to produce relevant electronic evidence. (CLICK HERE)
Boland in Garcia v. Berkshire Life Insurance Company of America granting, in part, defendant's Motion to
Compel plaintiff's counsel to produce electronic data. "Technical incompetence with respect to computers..."
found not to be a viable argument for failure to produce relevant electronic evidence. (CLICK HERE)
Review the text of the February 25, 2009 Order of Senior USDC Judge John Kane and Recommendation
of Magistrate Judge Michael Watanabe, USDC Colorado in Smith et al. v. Slifer, et al. granting Plaintiff's
Motion for Sanctions for Destruction of Evidence where a party to the action used wiping software to remove
data from a computer system after being on notice of investigation and resulting lawsuit. (CLICK HERE)
of Magistrate Judge Michael Watanabe, USDC Colorado in Smith et al. v. Slifer, et al. granting Plaintiff's
Motion for Sanctions for Destruction of Evidence where a party to the action used wiping software to remove
data from a computer system after being on notice of investigation and resulting lawsuit. (CLICK HERE)
Local rules, forms and guidelines adopted by USDC Courts (CLICK HERE)
August 21, 2007 Order from USDC, Middle District of Florida, In re: Seroquel granting plaintiffs' Motion for
Sanctions against Defendants for failure to produce electronic data "in a usable format". Problems included
lack of page breaks, bates labels, load files and parent / attachment relationships. Court found defense
"purposely sluggish" with regard to attempts to provide evidence "in a usable format". "It is not appropriate
to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence". (CLICK
HERE)
Sanctions against Defendants for failure to produce electronic data "in a usable format". Problems included
lack of page breaks, bates labels, load files and parent / attachment relationships. Court found defense
"purposely sluggish" with regard to attempts to provide evidence "in a usable format". "It is not appropriate
to seek an advantage in the litigation by failing to cooperate in the identification of basic evidence". (CLICK
HERE)
May 29, 2008 Order from USDC, Maryland, Victor Stanley Inc. v. Creative Pipe, Inc., et al. ruling that
word searches to locate privileged documents, and also only looked at titles of non-text searchable
documents to determine privilege. Magistrate ruled that 165 documents, including emails between defense
counsel and their client, may be used by plaintiff's counsel as evidence. Complete waiver of attorney / client
privilege in this case was not requested by plaintiff's counsel. (CLICK HERE)
word searches to locate privileged documents, and also only looked at titles of non-text searchable
documents to determine privilege. Magistrate ruled that 165 documents, including emails between defense
counsel and their client, may be used by plaintiff's counsel as evidence. Complete waiver of attorney / client
privilege in this case was not requested by plaintiff's counsel. (CLICK HERE)
The Zubulake Opinions: (CLICK HERE) - then click on Bookmark tab on left pane for index to the opinions.
January 15, 2010 Order from USDC, SDNY, The Pension Committee of the University of Montreal
Pension Plan, et al. v. Banc of America Securities, et al. where adverse inference jury instructions
concerning spoliation of evidence and monetary sanctions are imposed against plaintiffs who were found to
be grossly negligent and negligent with regard to discovery obligations. (CLICK HERE)
Pension Plan, et al. v. Banc of America Securities, et al. where adverse inference jury instructions
concerning spoliation of evidence and monetary sanctions are imposed against plaintiffs who were found to
be grossly negligent and negligent with regard to discovery obligations. (CLICK HERE)
January 21, 2010 Order from USDC, Utah, Acessdata Corporation v. Alste Technologies. Defendant
was ordered to reproduce previously produced electronically stored information after their initial production
amounted to conversion of email (electronic data) to non searchable .PDF files. The order cites the
Advisory Committee Notes to FRCP 34(b)(2)(E)(ii) as follows, “….If the responding party ordinarily maintains
the information it is producing in a way that makes it searchable by electronic means, the information should
not be produced in a form that removes or significantly degrades this feature.” The Court found that the all
too common practice of printing out email and then rescanning it to a non-searchable .PDF for production
was not “reasonably usable” nor was it “the format in which it is ordinarily maintained.” (CLICK HERE)
was ordered to reproduce previously produced electronically stored information after their initial production
amounted to conversion of email (electronic data) to non searchable .PDF files. The order cites the
Advisory Committee Notes to FRCP 34(b)(2)(E)(ii) as follows, “….If the responding party ordinarily maintains
the information it is producing in a way that makes it searchable by electronic means, the information should
not be produced in a form that removes or significantly degrades this feature.” The Court found that the all
too common practice of printing out email and then rescanning it to a non-searchable .PDF for production
was not “reasonably usable” nor was it “the format in which it is ordinarily maintained.” (CLICK HERE)
Review the text of the June 15, 2010 Order of Magistrate Judge Kristen Mix, USDC Colorado in MedCorp
v. Pinpoint Technologies, ordering Plaintiff (who was found to have willfully spoliated 43 hard drives) to pay
$89,365.88 to the Defendant in connection with fees and expenses associated with litigating the spoliation
issue. Additionally, a jury instruction inferring that the destroyed evidence was unfavorable to plaintiff
(ordered previously by a special master) was upheld by Magistrate Mix. (CLICK HERE)
v. Pinpoint Technologies, ordering Plaintiff (who was found to have willfully spoliated 43 hard drives) to pay
$89,365.88 to the Defendant in connection with fees and expenses associated with litigating the spoliation
issue. Additionally, a jury instruction inferring that the destroyed evidence was unfavorable to plaintiff
(ordered previously by a special master) was upheld by Magistrate Mix. (CLICK HERE)
August 6, 2010 Order from USDC, ND of Misssissippi, The Estate of Eva Boles v. National Heritage
Realty, et al. Defendants failed to raise the issue of Rule 34 (form of production) until just 2 weeks prior to
trial, and were ordered to produce a highly confidential ledger in "unaltered electronic format" by 5:00 p.m.
the day following the Order despite numerous briefs, hearings and emergency motions. The Court noted
that Defendants' repeated objections to production requests were made on the basis of confidentiality,
relevance, burden and prejudice...all which were "factors other than form". "Rule 34(b)(2)(D) places the
burden on the responding party to "state the form or forms it intends to use." (CLICK HERE)
Realty, et al. Defendants failed to raise the issue of Rule 34 (form of production) until just 2 weeks prior to
trial, and were ordered to produce a highly confidential ledger in "unaltered electronic format" by 5:00 p.m.
the day following the Order despite numerous briefs, hearings and emergency motions. The Court noted
that Defendants' repeated objections to production requests were made on the basis of confidentiality,
relevance, burden and prejudice...all which were "factors other than form". "Rule 34(b)(2)(D) places the
burden on the responding party to "state the form or forms it intends to use." (CLICK HERE)
Review the text of the August 31, 2010 Order of Magistrate Judge Michael Hegarty, USDC Colorado in
Chevron v. Stratus Consulting, et al, ordering responding party to re-produce ESI in native format after prior
production in searchable .pdfs. Searchable .pdfs found not "reasonably usable" due to nature of claims and
need for authorship, timing, origin info found in native file metadata. Magistrate Judge Hegarty orders that the
ESI be produced in native format and "Bates-stamped only as technologically possible", due to responding
party's earlier requirement that all productions be Bates stamped. (CLICK HERE)
Chevron v. Stratus Consulting, et al, ordering responding party to re-produce ESI in native format after prior
production in searchable .pdfs. Searchable .pdfs found not "reasonably usable" due to nature of claims and
need for authorship, timing, origin info found in native file metadata. Magistrate Judge Hegarty orders that the
ESI be produced in native format and "Bates-stamped only as technologically possible", due to responding
party's earlier requirement that all productions be Bates stamped. (CLICK HERE)
Advisory Committee Notes to 12/01/06 Amendments to FRCP 34 (CLICK HERE)
Online Link to Current Federal Rules of Civil Procedure (CLICK HERE)
April 11, 2011 Order from USDC, ND of California, Quality Investment Properties v. Serrano Electric
where the court admonishes both parties for failure to discuss form of production at their FRCP 26(f) meet
and confer. Counsel for defense filed a Motion to Compel and Motion for Sanctions. US Magistrate Judge
Grewal states, "Had there been a candid discussion about the form in which documents should be
produced, the events precipitating this motion could have been avoided. Instead, rather than the parties
each controlling its own fate by negotiating an agreement each could live with, the court must now decide
which one of the parties will invest further resources to correct these mistakes." Judge Grewal goes on to
suggest to counsel that the litigation support professionals for each party meet to discuss “….how the data
already produced can be loaded into Serrano’s litigation database and then searched.” (CLICK HERE)
where the court admonishes both parties for failure to discuss form of production at their FRCP 26(f) meet
and confer. Counsel for defense filed a Motion to Compel and Motion for Sanctions. US Magistrate Judge
Grewal states, "Had there been a candid discussion about the form in which documents should be
produced, the events precipitating this motion could have been avoided. Instead, rather than the parties
each controlling its own fate by negotiating an agreement each could live with, the court must now decide
which one of the parties will invest further resources to correct these mistakes." Judge Grewal goes on to
suggest to counsel that the litigation support professionals for each party meet to discuss “….how the data
already produced can be loaded into Serrano’s litigation database and then searched.” (CLICK HERE)