Your SlideShare is downloading. ×
  • Like
M12S09 - ERM Case Law: The Latest News, Trends, and Issues
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×

Now you can save presentations on your phone or tablet

Available for both IPhone and Android

Text the download link to your phone

Standard text messaging rates apply

M12S09 - ERM Case Law: The Latest News, Trends, and Issues

  • 147 views
Published

From the MER Conference 2012 …

From the MER Conference 2012

Speaker: Kenneth Withers, Esq.

2011 was another year in which court decisions involving electronic records made headlines in both the legal and records management worlds.

2011 was:

The fifth anniversary of the federal rule amendments that recognized "electronically stored information" (ESI) as a unique category of evidence,
A year in which federal Courts of Appeal - not just the trial courts - recognized the costly and disruptive effect that disputes over the preservation and production of ESI can have, and
A year in which highlighted the frustration that lawyers, clients, judges, and court rule makers have with our slowly-evolving "common law" of preservation and spoliation.

This fast-paced session will bring you up to speed on how the courts have been addressing electronic records management issues in the past year.

The following issues will be highlighted and discussed:

- When the "duty of preservation" is triggered,
- Obligations to preserve backup media,
- The preservation and production of metadata,
- The preservation and discovery of social media and ESI in the cloud,
- The consequences of failing to implement a "litigation hold",
- Proportionality in preservation and production of ESI, and
- The prognosis for new federal rules in 2013.

Published in Education
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
147
On SlideShare
0
From Embeds
0
Number of Embeds
0

Actions

Shares
Downloads
2
Comments
0
Likes
0

Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. Cohasset Associates, Inc. NOTES ERM Case Law: The Latest News, Trends, and Issues Kenneth J. Withers, Esq. The Sedona Conference® Value of RIM procedures  Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011); Hynix Semiconductor v. Rambus Inc., 645 F.3d 1336 (Fed Cir 2011) (Fed. Cir.  Intentional destruction of ESI does not necessarily mean “bad faith” Session 9 / May 7, 2012 2 Value of RIM procedures  More examples:  Spanish Peaks Lodge, LLC v. Keybank National Association, 2012 WL 895465 ( (W.D.Pa. Mar. 15, 2012) , )  Viramontes v. U.S. Bancorp, 2011 WL 291077 (N.D. Ill. Jan. 27, 2011)  Northington v. H&M Int’l, 2011 WL 663055 (N.D. Ill. Jan. 12, 2011) Session 9 / May 7, 2012 32012 Managing Electronic Records Conference 9.1
  • 2. Cohasset Associates, Inc. NOTES Value of RIM procedures  More examples:  Benson v. Sanford Health, 2011 WL 1135379 (D.S.D. Mar. 25, 2011)  Jacobeit v Rich Township High School v. District, 2011 WL 2039588 (N.D. Ill. May 25, 2011)  Medeva Pharma Suisse A.G. v. Roxane Laboratories, Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011) Session 9 / May 7, 2012 4 Value of RIM procedures  Some BAD examples:  Voom HD Holdings, LLC v. Echostar Satellite, L.L.C., 2012 WL 265833 (N.Y. Sup. Ct. App. Div. Jan. 31, 2012) , )  Bryden v. Boys & Girls Club of Rockford, 2011 WL 843907 (N.D. Ill. Mar. 8, 2011)  Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314 (Fed. Cir. 2011) Session 9 / May 7, 2012 5 What triggers the duty of preservation?  Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011); Hynix Semiconductor v. Rambus Inc., 645 F.3d 1336 (Fed Cir 2011) (Fed. Cir.  Duty arises when party sets on course that reasonably can be expected to lead to litigation Session 9 / May 7, 2012 62012 Managing Electronic Records Conference 9.2
  • 3. Cohasset Associates, Inc. NOTES What triggers the duty of preservation?  In re Delta/Airtran Baggage Fee Antitrust Litig., 2011 WL 915322 (N.D. Ga. Feb. 22, 2011)  Department of Justice investigation does not necessarily trigger duty to preserve Session 9 / May 7, 2012 7 Scope of the duty to preserve  Gaalla v. Citizens Med. Ctr., 2011 WL 2115670 (S.D. Tex. May 27, 2011)  No general duty to preserve backup media  Genger v TR Investors LLC 2011 WL v. Investors, LLC, 2802832 (Del. Supr. July 18, 2011)  No general duty to preserve “unallocated free space” Session 9 / May 7, 2012 8 Proportionality in preservation  Pippins v. KPMG, LLP, 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011); 2012 WL 370321 (S.D.N.Y Feb. 3, 2012)  Court orders preservation of 2 500 hard drives 2,500 at a cost of $1.5 million  Defendant failed to make case for proportionality Session 9 / May 7, 2012 92012 Managing Electronic Records Conference 9.3
  • 4. Cohasset Associates, Inc. NOTES Supervising employees  Gentex Corp. v. Sutter, 2011 WL 5040893 (M.D.Pa. Oct. 24, 2011)  Sanctions appropriate for individual defendants who intentionally destroyed electronic evidence, but defendant corporation not liable Session 9 / May 7, 2012 10 Supervising employees  E.I. Du Pont De Nemours and Co. v. Kolon Indus., 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)  Defendant instructed by the federal government to keep its investigation of the matter as limited and confidential as possible  E.I. Du Pont De Nemours and Co. v. Kolon Indus., 2011 WL 2966862 (E.D. Va. July 21, 2011)  Intentional and bad faith deletion of relevant files and emails by key employees justified imposition of adverse inference instruction Session 9 / May 7, 2012 11 7th Circuit Pilot Program  Principle 2.02 - E-Discovery Liaison(s)  In most cases, the meet and confer process will be aided by participation of an ediscovery liaison(s) as defined in this Principle. In the ( ) p event of a dispute concerning the preservation or production of ESI, each party shall designate an individual(s) to act as ediscovery liaison(s) for purposes of meeting, conferring, and attending court hearings on the subject. Session 9 / May 7, 2012 122012 Managing Electronic Records Conference 9.4
  • 5. Cohasset Associates, Inc. NOTES 7th Circuit Pilot Program  …[T]he e-discovery liaison(s) must:  (a) be prepared to participate in e-discovery dispute resolution;  (b) be knowledgeable about the partys e-discovery efforts;  (c) be, or have reasonable access to those who are, familiar with the party s electronic systems and capabilities partys in order to explain those systems and answer relevant questions; and  (d) be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology. Session 9 / May 7, 2012 13 Possible rule amendments?  Bright line rule defining the trigger or scope of the duty of preservation unlikely  Rules can’t regulate behavior that occurs before courts have jurisdiction over the parties  Plenty of proposals on the table; e.g. No duty of preservation before lawsuit is filed Duty limited to refraining from obstructing justice Session 9 / May 7, 2012 14 Possible rule amendments?  Possible new Rule 37(g) or amended Rule 37(e)  Part One allows only “remedial” sanctions, e.g.: eg: Further discovery Costs  Part Two allows severe sanctions only on findings of bad faith and severe prejudice Session 9 / May 7, 2012 152012 Managing Electronic Records Conference 9.5
  • 6. Cohasset Associates, Inc. NOTES Possible rule amendments?  Part Three spells out factors for spoliation sanctions, including: (A) the extent to which the party was on notice that litigation was likely and that the information would be discoverable (B) the reasonableness of the party’s efforts to preserve the information, information including the use of a litigation hold and the scope of the preservation efforts (C) whether the party received a request that information be preserved, the clarity and reasonableness of the request, and 13 — if a request was made — whether the person who made the request or the party offered to engage in good faith consultation regarding the scope of preservation Session 9 / May 7, 2012 16 Possible rule amendments?  Part Three (continued): (D) the party’s resources and sophistication in matters of litigation (E) the proportionality of the preservation efforts to any anticipated or ongoing liti ti ti i t d i litigation (F) whether the party sought timely guidance from the court regarding any unresolved disputes concerning the preservation of discoverable information Session 9 / May 7, 2012 17 New Sedona publications  The Sedona Conference® Primer on Social Media (2012)  The Sedona Conference® Commentary on Ethics & Metadata (2012)  The Sedona Conference® Commentary on Proportionality in Discovery (forthcoming in 2012) Session 9 / May 7, 2012 182012 Managing Electronic Records Conference 9.6
  • 7. Cohasset Associates, Inc. NOTES New Sedona publication  The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (European Union Edition, December 2011) Session 9 / May 7, 2012 19 New Sedona website  www.thesedonaconference.org  Individual user profiles  Online registration for events and activities  Flexible Working Group membership  More online interactivity and dialogue Session 9 / May 7, 2012 202012 Managing Electronic Records Conference 9.7