In the Eye of the Beholder: The Relevance of Facebook Evidence

Social networking litigation will be written by the end users of those websites.  In Bass v Miss Porter’s School, the Defendant school sought from the Plaintiff discovery of her alleged teasing and taunting on Facebook.  Bass v. Miss Porter’s Sch., 2009 U.S. Dist. LEXIS 99916 (D. Conn. Oct. 27, 2009).

The Plaintiff objected to the Facebook discovery request on the following grounds:

1) The Facebook information was “irrelevant and immaterial” and was “not reasonably calculated to lead to the discovery of admissible evidence;” and

2) “[Plaintiff's] ability to produce responsive documents was severely curtailed by Defendants’ actions in disconnecting the Plaintiff’s access to her school email and intranet access prior to the filing of this lawsuit.” Bass, at *2.

After subpoenaing Facebook, Facebook agreed to produce “reasonably available data” from the Plaintiff’s profile from January 1, 2008 to May 1, 2009.  Bass, at *2.

The Court ordered the Plaintiff to produce 1) all responsive Facebook discovery to the Defendant and 2) everything produced from Facebook to the Court for in camera review.  Bass, at *3.

The resulting production was 100 pages (apparently printed out) to the Defendant and 750 pages produced to the Court.  Bass, at *3.

The Court was noticeably frustrated with the Plaintiff’s attorney.  The Court stated the production offered “no guidance as to the grounds or basis on which her counsel made the determination of which documents to produce to Defendants.” Bass, at *3.

The Court took direct aim Plaintiff’s claim the Facebook discovery was irrelevant after reviewing the Facebook production by date, sender/recipient and subject matter.  Bass, at *3.  The Court found:

The selections of documents Plaintiff disclosed to Defendants and those she referred for in camera review reveal no meaningful distinction. Facebook usage depicts a snapshot of the user’s relationships and state of mind at the time of the content’s posting. Therefore, relevance of the content of Plaintiff’s Facebook  usage as to both liability and damages in this case is more in the eye of the beholder than subject to strict legal demarcations, and production should not be limited to Plaintiff’s own determination of what maybe “reasonably calculated to lead to the discovery of admissible evidence.” Bass, at *3-4.

The Court overruled the Plaintiff’s objection to producing Facebook discovery, especially in light of the fact the in camera production contained communications clearly relevant to the lawsuit.  Bass, at *4.

Bow Tie Thoughts

This is a wonderful short and sweet opinion on using Facebook information in discovery.  The Court’s recognition that Facebook usage can reflect the state of mind of a user was excellent to see.  The only area somewhat concerning about the opinion was the fact the Facebook discovery was printed and not maintained in a digital form of production.

If It is Lost, It’s Not in Your Possession, Custody or Control under Rule 26(a)

In a prison medical treatment case, the Plaintiff brought a motion to exclude medical records pursuant to Federal Rule of Civil Procedure Rule 37(c) after the files were not identified in the Defendants’ initial disclosures or produced in discovery.  Nance v. Wayne County, 2009 U.S. Dist. LEXIS 96279 (M.D. Tenn. Sept. 15, 2009).

The only catch: the non-identified files were lost. 

The Plaintiff claimed the Defendants failed to disclosure the Plaintiff’s medical record pursuant to Federal Rule of Civil Procedure Rule 26(a) (or supplement their discovery responses) and erroneously denied a request for admission. Nance, at * 5-6.  The fact the medical records at one time existed was not discovered until the deposition of a treating nurse.  Nance, at *6-7. 

The Plaintiff wanted 1) the Defendants not be allowed to use the medical records; 2) the facts in the medical records be taken as true according to the Plaintiff’s claims 3) jury instructions on the non-disclosure of the medical records and 4) fees and costs for the deposition.  Nance, at *11-12. 

The Plaintiff lost….because the medical file was lost.   

The Court found the Defendants did not violate Federal Rule of Civil Procedure Rule 26(a).  A party’s initial disclosures only need to include documents within its “possession, custody or control.”  Nance, at *13-14.  Since the medical file was lost, the file was not within the Defendants “possession, custody or control.” Nance, at *16.  Additionally, the Defendant was not going to use the medical file to support claims or defenses. Nance, at *16-17.

Bow Tie Lesson

The lesson of this discovery dispute is that you cannot use what is lost, nor can you disclose what does not exist.

Things to Think About for Your Rule 26(f) Meeting…

In a case management hearing, the parties were directed to consider the following electronically stored information (ESI) issues at their Rule 26(f) conference for drafting their proposed Rule 16(b) order:

With regard to any discoverable electronically stored information (ESI) the parties may have, the Court further requests that the joint discovery plan also include any issues and concerns related to the following:

a. What ESI is available and where it resides;

b. Ease/difficulty and cost of producing information;

c. Schedule and format of production;

d. Preservation of information; and

e. Agreements about privilege or work-product protection.

 Wallace v. Tindall, 2009 U.S. Dist. LEXIS 89669, *2-3 (W.D. Mo. Sept. 29, 2009).

It is good to see Courts ordering parties to consider issues such as whether ESI is reasonably accessible, the form of production, preservation and privilege concerns in case management orders.  While the above order is actually brief on the e-Discovery issues, consider the new California Rules of Court section 3.724(8), which require the following topics to be discussed at the “Meet & “Confer:”

Any issues relating to the discovery of electronically stored information, including:

(A) Issues relating to the preservation of discoverable electronically stored information;

(B) The form or forms in which information will be produced;

(C) The time within which the information will be produced;

(D) The scope of discovery of the information;

(E) The method for asserting or preserving claims of privilege or attorney work product, including whether such claims may be asserted after production;

(F) The method for asserting or preserving the confidentiality, privacy, trade secrets, or proprietary status of information relating to a party or person not a party to the civil proceedings;

(G) How the cost of production of electronically stored information is to be allocated among the parties;

(H) Any other issues relating to the discovery of electronically stored information, including developing a proposed plan relating to the discovery of the information;

Case management orders such as the above and the new California Rules of Court acknowledge the reality that every case will have electronically stored information of some kind.  Lawyers must deal with these realities early and not wait for them to become problems.

Speedy Delivery: Compelling Imaging & Searching of Everything

In a contract dispute regarding a shipping vendor, the Plaintiff brought a motion to compel the collection and processing of the entire contents of Defendants’ hard drives, network drives, and user files.  Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 U.S. Dist. LEXIS 94844 (D. Utah Oct. 12, 2009).

In not much of a surprise, the Court said “No.”

Please Sign Here: Meet & Confer over Custodians

As the discovery dispute began, the parties agreed to provide each other a list of custodians to be searched for responsive documents.  Unishippers Global Logistics, at *4.  The Defendants identified 13 opposing custodians and the Plaintiff 36 custodians.  Id. 

The litigants agreed to produce “all emails between or among the custodians” and to perform searches on internal and external email networks.  Unishippers Global Logistics, at *4. 

The Dispute: Imagining Network Files, User Files & Hard Drives

The Plaintiff claimed the Defendant refused to “image and search the network files, user files, and the hard drives of its identified custodians for responsive documents.” Unishippers Global Logistics, at *4. 

 One can imagine the Gigabytes very quickly expanding for ESI review with 36 custodians…

The Motion to Compel

You can sense the Court was not happy with the Plaintiff.  They failed to comply with local rules on discovery disputes and brought the motion to compel without first receiving or reviewing the Defendants’ production.  Unishippers Global Logistics, at * 6.

The Plaintiff wanted the Court to order the Defendants to “conduct relevant word searches of its custodians’ user files, network drives, and individual hard drives for responsive documents.” Unishippers Global Logistics, at * 6.  Moreover, the Plaintiff took issue with the Defendant collecting and reviewing email from custodians and collecting non-duplicative ESI from other sources, and then producing accordingly.  Unishippers Global Logistics, at * 6. 

The Defendants opposed the motion as premature and that the Plaintiff wanted everything electronic searched.  Unishippers Global Logistics, at * 6.

The Court Order

The Court held the Plaintiff’s arguments were without merit. Unishippers Global Logistics, at * 7.

First, it is self-evidence that a producing party “must determine whether it possesses relevant documents that are responsive to a particular discovery request.” Unishippers Global Logistics, at * 7.  To be blunt, that is just how document review and discovery works. 

Secondly, the Court held it was unnecessary and unduly burdensome to force the Defendant to “collect and process the entire contents of the custodians’ hard drives, network drives, and user files,” that were known to be non-relevant.  Unishippers Global Logistics, at * 7.  

Third, the Defendant explained their email discovery protocols, which the Court seemed to accept as defensible.   Unishippers Global Logistics, at *8-9.   

The Court based its ruling on Federal Rule of Civil Procedure Rule 26(b)(2)(C) which states a court “must limit the frequency or extent of discovery . . . if it determines that . . . the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Unishippers Global Logistics, at * 7, citing  Fed. R. Civ. P. 26(b)(2)(C)(i).  Moreover, a court must also limit discovery where “the burden or expense of the proposed discovery outweighs its likely benefit.” Unishippers Global Logistics, at * 7-8, citing Fed. R. Civ. P. 26(b)(2)(C)(iii).

Bow Tie Thoughts

This motion probably could have been dismissed as not ripe or for procedural defects.  Additionally, the Plaintiff would have been in a much stronger position if they actually had reviewed the Defendant’s production. 

The Plaintiff did not make an articulable basis that the Defendant somehow failed in their discovery production, such as a Rule 26(g)(1) violation.  However, if there are later production discrepancies, we may see a follow up to this case.

The Titan Killer: Mandatory Exclusion under Federal Rule of Civil Procedure Rule 37(c)(1)

Oracle and SAP are at war.  They have exchanged bayonet charges in discovery for two years in a case where Oracle has accused SAP (TomorrowNow) of “systematic and pervasive illegal downloading of Oracle software over approximately six years.”  Oracle United States v. Sap Ag, 2009 U.S. Dist. LEXIS 91432 (N.D. Cal. Sept. 17, 2009).  Production has been over 12 terabytes with 140 custodians and document review for each custodian has cost $100,000.   Oracle, 6-7.

Somewhere in the thirteen discovery conferences, the Court instructed the parties to follow the proportionality requirements of Federal Rule of Civil Procedure Rule 26(b)(2)(c), to beware of the expense of the proposed discovery outweighing its benefit.  Oracle, 7-8.  Needless to say, knowing the damages at issues when they could equal the budget of a large city would be important to know early in discovery. 

The Plaintiff took the position for two years that their lost profits damages were based on “lost support revenue for Oracle software application products from Plaintiffs’ 358 former customers that had received support from Plaintiffs, but switched to receiving support for Oracle products from TomorrowNow.”  Oracle, 8.  

And that is how discovery played out to the tune of millions of dollars for both parties for two years. 

Iceberg, Dead Ahead

The Plaintiffs switched damages arguments during the depositions of their executives in April and May of 2009.  Oracle, 38.  The Plaintiffs at that time claimed the “greater economic harm came from lost licensing revenue and price reductions to customers that never left Oracle for TomorrowNow.”  Oracle, 38.  The Plaintiffs referred to lost customers as “only the tip of the iceberg” to their damages, which were not disclosed for two years to the Defendants and the Court. Oracle, 38-39.

To Kill a Titan: Court Orders and Supplemental Disclosures

The Defendants fought a Hegemonic war to exclude the additional damages evidence for violating a Federal Rule of Civil Procedure Rule 16(f) discovery order and failure to supplement discovery under Federal Rule of Civil Procedure 26(e)(1).  Moreover, a failure under Federal Rule of Civil Procedure Rule 26(e)(1) subjects the offending party to mandatory exclusion of that information under Federal Rule of Civil Procedure Rule 37(c)(1).  Oracle, 12-15.

The Court held the Plaintiffs had a duty to disclose the “tip of the iceberg” damages known to their executives, long before their depositions two years after millions of dollars had been spent on discovery.  Oracle, 48. The Defendants’ economic damages expert witness stated it would take an additional year to analyze the new damages claims and cost $5 million ($4.4 million had already been spent and it was estimated $4 million more through trial).  Oracle, 48-49. There was no excuse for not disclosing basic damage claims in discovery. 

The Court granted the Defendants’ exclusion motion, precluding the Plaintiffs from arguing any additional damage theories other then the original damages theory. Oracle, 58-59.  Don’t feel too bad for the Plaintiff, because this evidence might be over a billion dollars.  Oracle, 59.

Bow Tie Lessons: The Hammer will Fall

The Plaintiffs were precluded from arguing additional damages theories because they did not supplement their initial and court ordered discovery.  Courts are truly laying down the law on Federal Rules of Civil Procedure Rules 26(a) and 26(e)(1) with the hammer of Federal Rule of Civil Procedure Rule 37(c)(1).

Auto-Exclusion: Undermining Your Own Case with Failed Disclosures

Discovery Rules with Teeth

Here is a great rule with teeth: If you do not disclose ESI or documents under Federal Rule of Civil Procedure Rule 26(a), they are automatically excluded under Federal Rule of Civil Procedure Rule 37(c)(1). 

In Melczer v. Unum Life Ins. Co. of Am., 2009 U.S. Dist. LEXIS 82549 (D. Ariz. July 16, 2009), the Plaintiff successfully excluded 526 documents that were untimely disclosed under Federal Rule of Civil Procedure 37(c)(1). Melczer, 1-3.

Federal Rule of Civil Procedure Rule Rule 26(a)(1)(A)(ii)

The Defendants received the documents in May 2008.  Melczer, 3.  These documents were not disclosed to the Plaintiff, as required by Federal Rule of Civil Procedure Rule 26(a)(1)(A)(ii).  The Rules states, in relevant part:

“a copy–or a description of category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”

Put it in Writing: Federal Rules of Civil Procedure Rules 26(a)(4) and 26(g)(1)

Disclosures must be “in writing, signed, and served.”  Melczer, 2, citing Federal Rule of Civil Procedure Rule 26(a)(4).  The disclosure must be signed by an attorney.  Federal Rule of Civil Procedure Rule 26(g)(1).

To make life exciting, the Defendants orally told the Plaintiffs about the documents in October 2008….before the close of discovery that month. Melczer, 2.

Oral disclosure doesn’t count under the Federal Rules of Civil Procedure, because the Rules require disclosure to be in writing and signed.  Melczer, 3. As such, the disclosure was untimely. 

Auto-Exclusion of Untimely Disclosures

Pursuant to Federal Rule of Civil Procedure Rule 37(c)(1), untimely disclosures must be excluded, unless there is untimely disclosure was “substantially justified or harmless.”  Melczer, 2, citing Federal Rule of Civil Procedure Rule 37(c)(1).

The Defendants claimed there was substantial delay because the Plaintiffs refused to sign a stipulated protective order after the close of discovery. Melczer, 5-6. This was a self-defeating argument, since the stipulation was sought after the close of discovery. Melczer, 6.

The Court found the untimely production to not be harmless.  Melczer, 8. The Plaintiffs would have sought additional discovery on the documents, which would have required discovery to be reopened.  Melczer, 8-9.

The Court found the late production to be an untimely disclosure, which was neither justified nor harmless.  Melczer, 10.  Moreover, the remedy for an untimely disclosure is not reopening discovery, but an “automatic” exclusion under Federal Rule of Civil Procedure Rule 37(c)(1).  Melczer, 10. 

Bow Tie Lessons

The Courts are throwing down the gauntlet on Federal Rule of Civil Procedure Rule 26(a) violations.  After preserving electronically stored information, a party must disclose ESI and documents that support their claims or defense.  This could get ugly where there are thumb drives, mp3 players or any removal media.

Federal Rule of Civil Procedure Rule 26 Discussion

 In depth discussion on discovery obligations from my new seminar on Federal Rule of Civil Procedure  Rules 26 and 34.

Disturbo se if I Don’t Produce Discovery?

In Gotlin v. Lederman, 2009 U.S. Dist. LEXIS 78818 (E.D.N.Y. Sept. 1, 2009), the Plaintiff was precluded from using Italian medical records because of a failure to include the records in their initial disclosures.  

In the words of the Court, the Plaintiff’s attorney “provided virtually no discovery during the nearly eleven-month period allotted by the Court for fact discovery” and failed to attend a settlement conference. Gotlin, 3. 

It is no stretch of imagination to see how these actions resulted in the preclusion of evidence. 

Che Macello Discovery

The Plaintiff’s attorney belatedly produced 571 pages of “previously undisclosed, untranslated Italian medical records” on a CD-ROM after the close of expert discovery.  Gotlin, 7.  The only prior related discovery had been a 9 page report that was a summary of “the as-then-unproduced underlying Italian medical records.” Gotlin, 6. 

The Plaintiff produced the Italian medical records on August 3, 2009.  Gotlin, 7.  The Plaintiff’s attorney had received the medical records in May 2008 and had neither reviewed or translated the records.  Gotlin, 7-8.  The Plaintiff’s attorney did tell his expert about the medical records, who declined to review them.  Gotlin, 8.  The records laid in wait in the attorney’s file cabinet for over a year.   Gotlin, 8.

Initial & Supplemental Disclosures under Federal Rules of Civil Procedure Rule 26(a) & Rule 26(e)

Federal Rule of Civil Procedure Rule 26(a) requires that “a party must, without awaiting a discovery request, provide to the other parties . . . a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Gotlin, 9-10, citing Fed. R. Civ. P. 26(a)(1)(A)(ii).

Federal Rule of Civil Procedure Rule 26(e) requires that a party supplement their initial disclosures or discovery responses, when they learn “that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Gotlin, 10, Fed. R. Civ. P. 26(e)(1)(A).

The duty to supplement a discovery response is triggered when a lawyer “obtains actual knowledge that a prior response is incorrect.” Gotlin, 10, citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 433 (S.D.N.Y. 2004).

The Preclusion of the Italian Medical Records

The Plaintiff had no justification in not producing the Italian medical records.  These records should have been included in the Plaintiff’s initial disclosures and should have been produced pursuant to the Defendant’s discovery requests.  Gotlin, 13.  The Plaintiff’s attorney only excuse was his difficulty in “juggling 20 clients.”  Gotlin, 14.

As the Court stated:

In this connection, [Plaintiff’s attorney] essentially admits that his failure to disclose was due to his own neglect…which, unfortunately, represents yet another example of [Plaintiff’s attorney] having failed to competently manage his discovery obligations in this case. Simply put, in circumstances such as these, attorney neglect or oversight is not an acceptable explanation for failure to disclose. Gotlin, 14.

The Court evaluated three factors in deciding whether to preclude the use of the Italian medical records.  These interests were 1) The Explanation for the Failure to Disclose 2) Importance of the Evidence, and 3) Prejudice Against the Defendants for the Failure to Disclose.  Gotlin, 14-17. 

The Court found the attorney’s answer “unsatisfactory” for not producing the Italian medical records.  Gotlin, 14. Having an active caseload is not an excuse for failing to meet your discovery obligations.

The Court found the evidence could have some importance on the Plaintiff’s quality of life, despite the fact the records sat untranslated in a file cabinet for a year.  Gotlin, 15-16. 

As for the prejudice, there would be costs for translation, delays and even a possible trial continuance.  Gotlin, 16-17.  Expert discovery would also likely need to be reopened to evaluate the medical reports. 

The Court found the factors weighed in favor of precluding the evidence, given the amount of time that had past and the prejudice upon the Defendants, pursuant to Federal Rule of Civil Procedure Rule 37(c).  Gotlin, 17-18.

Bow Tie Lessons

Discovery cannot sit on the shelf and collect dust if a party intends to use it in their case.  The challenge with hard drives full of electronically stored information can compound this issue if attorneys do not access and analyze their cases with their clients once litigation is reasonably foreseeable.

101 Bow Ties

My 101^st post is different than any of my other postings to date: Here is the story behind the Bow Tie Law Blog and my thoughts on the practice of law.

I have an amazing career.  While I was at CT Summation, I traveled to Alaska, across Canada, met with judges and saw classic Americana with witnessing the lighting of the Christmas Tree in Rockefeller Plaza and the dying of the river green in Chicago.  My adventures have continued with D4 LLC, including a visit to Niagara Falls after one seminar and I am publishing this blog while I am in US Virgin Islands for a full day e-Discovery event. 

Stay tuned for a new webinar campaign this Fall, Paraben’s 2^nd Annual Forensic Innovation Conference and a mock trial with the Beverley Hills Bar Association. 

Reasons for the Bow Tie Law Blog

I love the law.  I also love the intersection between law and technology.  This began in law school studying the pilot program for PACER and as a research assistant for Professor Fred Galves on his article Will Video Kill the Radio Star? Visual Learning and the Use of Display Technology in the Law School. For the record, I came up with the homage to the Buggles.

I started the Bow Tie Law Blog in December 2008.  While it was not the best of times (I had been laid off by a litigation support vendor), BTLB provided me an opportunity to discuss current cases and e-Discovery issues.

My First Litigation Support Software

I first used CT Summation LG Gold 2.6 and Trial Director on a project that was originally supposed to be three months.  It lasted thirteen.  The case went all the way through motions in limine before we settled. 

I learned a lot on that case.  First, it was easier to search through a database then climb into a document repository.  Second, a small firm that can “command evidence” with a litigation support database can take on a larger firm with a small army of associates on a case.

One thing I learned about scanned paper: Get the project OCR-ed.  We had thousands of TIFFs that we had to search and annotate without the benefit of optical character recognition processing.  We could have saved hours if we had the ability to search the text of those TIFFs.  Auto Coding would have been Heaven. 

The Future for Lawyers

Technology’s effect on how we live our lives is told in glowing hymns by Don Tapscott in grown up digital and negative thunderbolts by Mark Bauerlein’s The Dumbest Generation.  Regardless of whether you agree with these authors, people are walking ESI generators. 

There are 160,000 active lawyers in the State of California (217,000 if you count the inactive members).  All must consider electronically stored information since the enacted of the California Electronic Discovery Act on June 29, 2009 and the California Rules of Court 3.724 requiring ESI to be discussed in the meet and confer process. 

The immediate future for lawyers in California, the Federal Courts and nearly every state in the Union is to understand electronically stored information.  Lawyers must be aware of requesting cell phone photos after a car accident; Lawyers must be aware of how to review ESI with litigation review software; and lawyers must know how to effectively communicate litigation holds to their clients and be able to intelligently discuss ESI with their opponents and the Courts.

These challenges are not insurmountable, but will require an active effort to learn about forms of production, work with trusted vendors and educate their judges on their clients’ electronically stored information. 

A Big Thank You

I look forward to my next 100 blog postings and appreciate everyone following me on Twitter, Gabe’s Guide, The Posse List and Complexd.

Don’t Bank on this Strategy to Compel Electronically Stored Information

The Court finds the parties could have avoided the expenses of this Motion by conferring appropriately early in the case about ESI.

United States Magistrate Judge Michael R. Merz, Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, 2009 U.S. Dist. LEXIS 70514 (S.D. Ohio July 24, 2009).

Banks really should cooperate on electronic discovery issues when they sue each other.

Instead, Wells Fargo and LaSalle exchanged broadsides over searching back-up tapes and spoliation claims very late in the litigation.  The Court denied the dueling motions and dressed down the parties for not conferring about ESI earlier in the case.

The Parties were bound by several scheduling orders, which included them conferring on the production of electronically stored information and a discovery cut-off date that was extended several times.  Wells Fargo Bank, N.A., 3-4.   

Plaintiff Wells Fargo Bank brought a motion to compel and sanctions motion against Defendant LaSalle Bank National.  The Court summarized the parties’ dispute as follows:

Essentially Wells Fargo contends that LaSalle did not search a number of backup tapes for relevant documents and should be subject to spoliation sanctions for not maintaining all of the backup tapes which might have contained responsive ESI. LaSalle responds that ESI on backup tapes is not readily accessible in that it would take six months and almost half a million dollars to restore the backup tapes. LaSalle counterpunchs by accusing Wells Fargo of the same sins — not producing documents from backup tapes, not placing a litigation hold on backups, etc. Wells Fargo Bank, N.A., 5.

The Court was less than thrilled with the Parties in this case not conferring on electronically stored information and starting an ESI grudge match four months after the close of discovery and two months before trial.  Wells Fargo Bank, N.A., 7. As the Court bluntly stated:

The current dispute is a mild example of the sorts of problems which result when counsel do not deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one-paragraph boilerplate statements about ESI and waiting for the explosion later. Wells Fargo Bank, N.A., 6-7.

The Court found that restoring the back-up takes was “disproportionate to the likely utility of doing so.”  Wells Fargo Bank, N.A., 7.  Moreover, the cost of the restoration was out of proportion to the amount in controversy.  Wells Fargo Bank, N.A., 8.  Additionally, the Defendant’s practice of printing hard copies of “important” loan documents that had been produced in discovery made the chances of finding anything new remote.  Wells Fargo Bank, N.A., 8. 

The Court very curtly denied the Motion to Compel and Sanctions Motion.  Wells Fargo Bank, N.A., 8. 

Bow Tie Lessons

Electronically stored information must be addressed early in the lawsuit in the Rule 26(f) Conference, not on the eve of trial. 

The Court gave some practice pointers for having an effective meet and confer process by citing to the Sedona Conference Cooperation Proclamation.  The Court included the following six points to aid counsel on ESI matters:

1. Utilizing internal ESI discovery “point persons” to assist counsel in preparing requests and responses;

2. Exchanging information of relevant data sources, including those not being searched, or scheduling early disclosures on the topic of Electronically Stored Information;

3. Jointly developing automated search and retrieval methodologies to cull relevant information;

4. Promoting early identification of form or forms of production;

5. Developing case-long discovery budgets on proportionality principles; and

6. Considering court-appointed experts, volunteer mediators, or formal ADR programs to resolve discovery disputes.

Wells Fargo Bank, N.A., 6, citing The Sedona Conference Cooperation Proclamation, July, 2008, available at thesedonaconference.org. 

As an old friend once said, “Bad news does not get better with age.”  Neither does ignoring electronically stored information until after the close of discovery.