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An overview of critical electronic discovery issues.


  1. Attorney-client privilege and work product

    1. Application. The attorney-client privilege and work product doctrines apply to electronic documents as to paper. Emails and their attachments will be analyzed separately for privilege. eSpeed, Inc. v. Chicago Board of Trade, 2002 U.S. Dist. LEXIS 7918 (S.D.N.Y.)(analyzing privilege claim for emails and attachments); St. Paul Fire & Marine Ins. Co. vs. SSA Gulf Terminals, Inc., 2002 U.S. Dist. LEXIS 11776 (E.D. La.)(emails protected by work product doctrine).
    2. Waiver. Disclosure to third parties, including experts, waives the privilege. United States Fidelity & Guaranty Co. v. Braspetro Oil Services Co., 2002 U.S. Dist. LEXIS 111 (S.D.N.Y.)

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  2. Cost allocation

    1. Balancing test. The trend in case law is toward a balancing test, considering a variety of factors. See: Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. LEXIS 7939 (S.D.N.Y., May 13, 2003); Rowe Entertainment, Inc. v. William Morris Agency, Inc., 2002 U.S. Dist. LEXIS 488 (S.D.N.Y.), motion denied, 2002 U.S. Dist. LEXIS 8308 (S.D.N.Y.)(court sets forth factors determining whether to shift costs of backup tape restoration to requesting party).
    2. Rule 26(f) conferences. Courts expect parties to meet and confer respecting electronic information, including formats for production, redaction, and allocation of specific costs of production. See In re Bristol-Myers Squibb Securities Litigation, 2002 U.S. Dist. LEXIS 13808 (D.N.J.)(court declined to enforce the parties' agreement regarding paper-copying costs, since the defendant had not disclosed that materials were available in electronic form).

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  3. Duties respecting electronic evidence

    1. Investigation and disclosure. Parties have a duty to thoroughly investigate and disclose the existence and location of potentially relevant documents; GTFM, Inc., v. Wal-Mart Stores, 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y.); and to disclose if documents are available in electronic form. In re Bristol-Myers Squibb Securities Litigation, 2002 U.S. Dist. LEXIS 13808 (D.N.J.).
    2. Production. Ordinary negligence in failing to produce documents is enough to invite sanctions, and parties will be held accountable for their decisions in dealing with providers of electronic discovery services. Residential Funding Corp. v. DeGeorge Home Alliance, Inc., 2002 U.S. App. LEXIS 20422 (2nd Cir.); see also Trigon Ins. Co. v. USA, 2001 U.S. Dist. LEXIS 18824 (E.D. Va.) (party sanctioned for destruction of evidence by retained litigation consultant).

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  4. Evidentiary Issues

    1. Authentication and foundation. Electronic documents do not require additional authentication or foundation testimony. See Perfect 10, Inc. v. Cybernet Ventures, Inc., 2002 U.S. Dist. LEXIS 7333 (9th Cir.)(foundation); Kearley v. Mississippi, 2002 Miss. App. LEXIS 560 (October 22, 2002)(authentication).
    2. Hearsay. Electronic documents, in particular emails, are subject to the hearsay rule. Admission of emails requires a hearsay exception for each level of hearsay. See, e.g., State of New York v. Microsoft Corporation, 2002 U.S. Dist LEXIS 7683 (D.D.C. 2002). Forwarded emails may be held adoptive admissions. Sea-Land Service, Inc. v. Lozen International, 285 F.3d 808 (9th Cir. 2002).
    3. Best Evidence Rule. A printout of data stored on a computer is an "original" under the Best Evidence Rule. Touche Ross & CO. v. Landskroner, 486 N.E. 2d 850 (Ohio App. 1984).

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  5. Form of Production

    1. Paper versus electronic. Production of materials in hard copy form does not preclude a party from receiving the same information in electronic form. Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y.); see also Cobell v. Norton, 2002 U.S. Dist. LEXIS 5291 (D.D.C.) (request for permission to produce emails on paper draws sanctions).

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  6. Sanctions

    1. Spoliation. Courts have imposed sanctions for spoliation of evidence occurring before or during litigation. Minnesota Mining & Manufacturing Co. v. Pribyl, 259 F.3d 587 (7th Cir. 2001) (negative inference instruction where information was overwritten immediately before computer turned over for inspection); Danis v. USN Communications, 2000 U.S. Dist LEXIS 16900 (N.D. Ill.) (monetary sanction for failure to preserve electronic evidence during litigation); Lewy v. Remington Arms Co., 836 F.2d 1104 (8th Cir. 1988) (remand for reconsideration of whether adverse inference instruction was appropriate; court to consider whether document retention policy underlying destruction of evidence was reasonable).
    2. Discovery Sanctions. Parties and counsel may incur discovery sanctions, for example, for failure to make adequate disclosures or to timely produce electronic information. Residential Funding Corp. v. DeGeorge Home Alliance, Inc., 2002 U.S. App. LEXIS 20422 (2nd Cir.)(negligence in failing to timely produce electronic information); Sheppard v. River Valley Fitness One, 2001 U.S. Dist. LEXIS 15801 (D.N.H.)(attorney sanctioned for "lack of diligence" in producing computer records and drafts); GTFM, Inc., v. Wal-Mart Stores, 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y.)(sanctions imposed for costs unnecessarily imposed on plaintiff by defendant's failure to disclose system capabilities).

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  7. Scope of Discovery

    1. Application of rule to electronic documents. Rule 26's provisions for scope of discovery and protective orders can raise particular issues respecting electronic documents. See, e.g., Hayes v. Compass Group USA, Inc., 202 F.R.D. 363 (D. Conn. 2001)(court limited discovery to those records that were computer-searchable); Ex Parte Wal-Mart, Inc., 2001 Ala. LEXIS 283 (appellate court sets geographic and temporal limits on discovery of computer database); Alexander v. Federal Bureau of Investigation, 188 F.R.D. 111 (D.D.C. 1998) (email request limited to "appropriately worded searches for limited number of individuals").
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The information contained herein is not intended to provide legal or other professional advice. Applied Discovery encourages you to conduct thorough research on the subject of electronic discovery.