Unfortunately, things are going to look a little odd for a while and it may take a few days to get all of the site’s functionality back up and running.  When it comes to work and blogging work wins out so I’m sometimes limited as far as time to work on this blog.  Please be patient and it will pay off I promise.

Case in Point provided a little humor on The "Dog Ate My Hard Drive" Defense.

e-discovery 2.0 continued its series on reducing e-discovery costs in How to Reduce Electronic Discovery Costs part III: Early Case Assessment.

e-Discovery Insights began analyzing the new California Electronic Discovery Act in a post entitled 1st Things 1st: The Litigation Hold Letter.

E-Discovery Bytes recently posted Coming Soon to A Wisconsin Courtroom Near You? which discusses the upcoming changings to the Wisconsin rules of civil procedure.

While on the topic of new rules, e-discovery 2.0 recently posted California Enacts Elecronic Discovery.

e-Lessons Learned recently posted Timber! Court Chops Down Government's Spoliation Case which discusses a recent decision finding that the unintentional spoliation of evidence did not warrant sanctions. 

Legal Holds and Trigger Events blog recently posted a link and information on a One Hour Podcast on Developing and Implementing Defensible Legal Holds.

The discovery at issue involved 50,000 pages of paper documents that were produced TO the subject attorney.  The Court noted that both parties "failed to put together a proper discovery plan concerning Electronically Stored Information," and that the attorney receiving the documents "contributed to the resulting discovery dispute by failing to offer search terms for the delivery of relevant ESI." 

The Court decided a reduction of fees was appropriate because the attorney's, "inhibited ability to participate meaningfully in electronic discovery tells the Court that she  has novice skills in this area and cannot command the rate of experienced counsel."

Electronic Discovery Law recently posted about a case in which "Inhibited Ability to Participate Meaningfully in Electronic Discovery" Results in Reduction of Rate of Recoverable Attorney's Fees.

Ride The Lightning recently posted Much Ado About Nothing? Computer Forensics and the Melendez-Diaz Case which found that allowing a forensics lab to present a certificate of its findings to the court without producing an analyst for cross examination violated a defendant's Sixth Amendment Right.

e-discovery 2.0 discusses the evolution of pricing when it comes to processing data in an electronic discovery project in Electronic Discovery Services: The Price is Right?

InfoGovernance Engagement Area responded to the previous post in Maslow's Hierarchy of Electronic Discovery Risk? Beyond Safety In Pricing

e-Discovery Insights discusses recent caselaw developments in Case Got Your Tongue? "Don't Tase Me, Bro!"

Electronic Discovery Law discusses Doppes v. Bentley Motors, Inc. in which the Appellate Court Finds Trial Court Abused its Discretion by Failing to Impose Terminating Sanctions for Discovery Abuses, Directs Entry of Default Judgment.

Workforce Management published an article on electronic records management problems businesses are currently facing.  Electronic Records Management: File This Under 'More Work Needed'

Bow Tie Law's Blog wrote about The Return of Covad Communications: Forensic Imaging of Databases & Email Servers.  The post discusses the issues involved in Covad Communs. Co. v. Revonet, Inc. which involved a detailed discussion of forensic examinations.

E-Lessosn Learned has a post about courts applying the business records hearsay exemption to digitally produced evidence–"Conspiracy and Cocaine and Computers, Oh my!"

Ride The Lightning followed up a previous post on securing PDF files with a discussion of comments received from a vendor in Securely Locking Down PDFs Redux.

Bow Tie Law’s Blog recently wrote about The Plumbing of a Motion to Compel, the discussion of a failed argument to avoid the production of ESI because of undue burden.

The Delaware Corporate and Commerical Litigation Blog recently provided two posts of interest.  The first discussed Four Recent Chancery Court Decisions on Electronic Discovery Issues.  The second discussed a recent article written on Rule 502 and eDiscovery in Delaware.

e-Lessons Learned recently posted E-Lesson Through Cliches: Don’t Judge a Book by Its Cover, a discussion of how Arizona’s definition of public records does not include metadata and thus it is protected from a presumption of disclosure as a public record.

Electronic Discovery Blog recently discussed a case where Untimely objections doom motions to compel.

Ride The Lightning offered an endorsement of a new book on e-Discovery, Electronic Evidence and Discovery: What Every Lawyer Should Know.

The Defendants had not instituted a formal legal hold and their search for responsive documents was limited to one database.  The intial search did not include any emails or employee hard drives.  Despite requests from PBSI, the Defendant had not instructed any employees to preserve relevant information while the litigation was pending.   When this search resulted in a suspiciously small number of relevant documents, the Plaintiffs brought the motion for sanctions seeking the prodcution of employee hard-drives and to shift the costs of foresenically examining them to determine whether any relevant information was deleted.  In the alternative, PBSI sought an adverse inference instruction based upon the intentional or negligent destruction of relevant information.

The Defendant argued that its standard document retention policy was sufficient to preserve relevant documents. The Defendant also pointed out that after the initial production, and after one of its key employees was deposed because of the limited number of documents produced, the Defendant issued a formal litigation hold notice to all employees.  After a further search of email files and employee hard drives, some additional relevant documents were found and produced. 

The Court began by noting that the Defendant's duty to preserve and produce relevant evidence was triggered by the filing of the lawsuit.  Failure to meet that duty could result in sanctionable conduct.  However, the Plaintiff failed to produce any evidence that relevant information had actually been destroyed by the Defendant's actions or its failure to act.  Because of that lack of evidence, the Court declined to award either sanction the Plaintiff sought. 

However, the important lesson is that the Court noted direct evidence that relevant evidence has been destroyed is often not present in sanctionable cases and discussed two alternative methods a party seeking sanctions can meet its burden.  FIrst, "a certain group of relevant documents may exist only back to a particular point in time, and not beyond, creating an inference that the same documents did exist for earlier time periods but have simply been deleted."  And second, "a party suspecting document destruction may show that it is the routine practice either of the defendant or other companies engaged in a similar business to maintain certain types of documents, but that no such documents have been produced by this defendant."

Regardless of the outcome, the Defendant's actions in this case were questionable at best.  The Defendant clearly played with fire here by not instituting a legal hold.  The Court left the Plaintiff the option of bringing the motion again in the future should it find any direct evidence of spoliation.  The limited extent of the search also could have led to sanctions however this error was rectified by the subsequent steps to conduct a proper search of all potential sources of ESI. 

Another important point is the Defendant's standard document retention policy.  While the Defendant argued its document retention policy would prevent the destruction of relevant information, the opposite is more likely.  The duty to preserve is often breached through the routine destruction of relevant documents when a party fails to suspend its document retention programs.

In Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., the Court refused to shift the costs involved to OCR the defendant's production of documents.  The Court found that cost shifting was inappropriate in this case because the defendant failed to show the documents were obtainable from other sources, had adequate financial resources available, and the OCR process was likely to streamline the discovery process.  Follow the link above to read a full discussion of the case and its analysis.