About This Blog
Summaries, news and resources relating to eDiscovery in Delaware and beyond.
Showing 3 posts from June 2010.
I rise now to defend the Court of Chancery's decision in TR Investors LLC v. Genger, C.A. 3994-VCS (December 9, 2009) against the allegations made by Leonard Deutchman, General Counsel at LDiscovery LLC, in a two-part post hosted by Law.com. I promised at the end of April that a defense would be forth coming but wanted to give everyone time to read the two posts to which I respond.
Mr. Deutchman asserts that the Court got the decision wrong because it (1) doesn't understand the technology involved (Part 1) and (2) doesn't understand the law of eDiscovery (Part 2). I have decided to respond in two parts to keep each of my posts digestible.
In Part 1, Mr. Deutchman aims to discredit the Court's technical competence, and his first criticism makes unsupported assertions about the Court's findings.
The court ruled that by wiping the unallocated space of the two drives, the defendant violated the standstill agreement and was thus in contempt of court. To reach its holding, the court had to make factual leaps and draw legal conclusions that are in my view questionable.
The court's first factual leap was that because temporary files could have resided intact in unallocated space, they were, in fact, intact prior to the wiping. More specifically, the longer leap is that because temporary files could have resided intact in unallocated space, temporary files important to plaintiffs were destroyed by the wiping.
In my reading, the Court did not assume or conclude that any particular files resided in unallocated space. Read as a whole, the opinion finds that files existed in unallocated space, some of which may have been relevant, but no one will ever know because Genger destroyed them. The Court fines Genger for willful destruction of data in direct and clear violation of a Court order.
Mr. Deutchman's second criticism was that "that the files [the Court] believed continued to reside in unallocated space if the defendant had not wiped them would have been important to the matter." Here Mr. Deutchman's merely reiterates Genger's "No harm, no foul" defense—or, as Ralph Losey refers to it, the "pig-in-a-poke" defense—to which the Court replied:
For a party to intentionally violate an order not to destroy or tamper with information and then to claim that he did little harm because no one can prove how much information he eradicated takes immense chutzpah. For a court to accept such a defense would render the court unable to govern situations like this in the future, as parties would know that they could argue extenuation using the very uncertainty their own misconduct had created.
Finally, Mr. Deutchman's concludes his first post by suggesting the Court is technically incompetent by claiming the Court thinks of unallocated space as a back up system.
It is important to note that nowhere in typical computer usage or professional information technology practice is the unallocated space on a hard drive regarded as "back up" in the way that the court does here.
No IT professional or typical user would consider unallocated space to be a "backup" space, akin to an external drive or backup tape used to affirmatively back up files, simply because forensic searching could possibly locate therein lost files in their deleted or temporary states.
While the Court of Chancery is likely not full of techno geeks, they seem to more than adequately understand the technology involved. In any case, the Court does not liken unallocated space to a backup system. On this point, the Court said "the information on the unallocated space of the TRI system therefore acted somewhat as a back-stop reservoir of documents that had been deleted from the active files of TRI users," and that the unallocated space was "a data source that would have acted as a back-stop in case relevant evidence had been deleted in the months when the motivation to delete would have been at a zenith." (Emphasis added.) Frankly, Mr. Deutchman's attempt to impugn the Court with this allegation is bizarre considering the plain and clear language quoted above.
I will address Mr. Deutchman's second assault on the Genger decision shortly.
Morris James LLP is pleased to announce that ten of its partners have been ranked among the leading Delaware lawyers in the 2010 edition of Chambers USA: America’s Leading Lawyers for Business - an increase of two rankings from last year. In addition, four practice areas including Bankruptcy/Restructuring, Chancery, Intellectual Property and Employment Law were identified among the leading practices in Delaware. The Morris James partners selected for inclusion in the 2010 edition are:
- Brett Fallon
- Carl N. Kunz
- Stephen M. Miller
- Edward M. McNally
- Lewis H. Lazarus
- P. Clarkson Collins, Jr.
- Mary M. Matterer
- Richard K. Herrmann
Labor and Employment
- David H. Williams
Real Estate: Zoning/Land Use
- A. Kimberly Hoffman
Chambers & Partners is a highly respected and influential London-based research and publishing company that provides rankings of leading business lawyers and law firms throughout the world. Rankings are based on technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by clients.
Morris James LLP is pleased to announce Peter B. Ladig has joined the firm as of June 1, 2010. The majority of Mr. Ladig’s practice is in the Delaware Court of Chancery, although he has extensive experience in the other state and federal courts in Delaware and has been involved in over 50 published decisions.
David Williams, the firm’s managing partner stated “We are delighted Peter Ladig has joined the Firm as a partner in our Corporate/Commercial Litigation Group. Peter adds his considerable skill and experience to a talented Group. We continue to look for opportunities to grow our Firm by adding accomplished laterals, particularly in the IP practice.”
Mr. Ladig has represented both stockholders and directors in litigation in the Court of Chancery in cases involving, among other things, advancement of legal fees and expenses, contested elections of directors, requests to inspect books and records and claims for breaches of fiduciary duties. He has also represented corporations and other entities in commercial disputes involving breach of contract claims and claims arising under the General Corporation Law of the State of Delaware.
Mr. Ladig has authored several articles pertaining to corporate and commercial litigation in Delaware and he is a frequent speaker before groups of professionals regarding Delaware laws affecting LLCs and other business entities. Mr. Ladig graduated with distinction from Emory University School of Law and has been a member of the Delaware Bar since 1996.