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Summaries, news and resources relating to eDiscovery in Delaware and beyond.
Showing 26 posts in Best Practices.
This is the third in a series of posts summarizing the 6 most important eDiscovery cases in Delaware in 2015.
Pfizer, Inc. v. Amgen Fremont Inc., C.A. No. 10667-VCL, Hearing on Cross Motions to Compel and Rulings of the Court, July 6, 2015. More ›
This is the second in a series of posts summarizing the 6 most important eDiscovery cases in Delaware in 2015.
Flax v. Pet360, Inc., C.A. No. 10123-VCL, Oral Argument on Plaintiff’s Second Motion for Sanctions and Rulings of the Court, June 29, 2015. More ›
The first Delaware opinion that has been issued that addresses either sanctions or proportionality under the new Federal Rules is GN Netcom, Inc. v. Plantronics, Inc. Plaintiff GN Netcom, Inc. (“GN”) filed a motion for sanctions against defendant Plantronics, Inc. (“Plantronics”) after a long discovery dispute that centered around the “intentional and admitted deletion of emails” by one of Plantronics’s senior executives and his directives to other members of his team to delete emails. More ›
This is the first in a series of posts summarizing the 6 most important eDiscovery cases in Delaware in 2015.
In re: ISN Software Corporation Appraisal Litigation, C.A. No. 8388–VCG, Oral Argument on Petitioners Motion to Compel and Partial Rulings of the Court, April 27, 2015. More ›
2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as document review and redactions.
This blog will be summarizing these 6 cases in more depth throughout the rest of 2016. The 6 cases that will be summarized are below: More ›
This is the seventh in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Mechel Bluestone v. James C. Justice Cos., C.A. No. 9218-VCL(Del. Ch. Dec. 12, 2014).
My colleague, previously summarized Mechel Bluestone in an article written on December 23, 2014 which discussed the need for senior Delaware counsel to guide and be closely involved in the preparation of privilege logs and to promptly respond to deficiency letters. The article can be read in its entirety here: http://www.morrisjames.com/newsroom-articles-357.html.
To recap, here are the seven most important eDiscovery cases in Delaware in 2014 (in chronological order) along with their key takeaways: More ›
This is the sixth in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Gloria James v. National Financial LLC, and Loan Till Payday LLC, C.A. No. 8931–VCL, December 5, 2014.
Ian McCauley previously summarized James v. National Financial in our blog post of December 29, 2014 which highlighted Delaware Counsel's discovery obligations as well as the sanctions that may be imposed for not complying with those obligations. The original post can be read in its entirety here: http://www.morrisjames.com/blogs-Delaware-eDiscovery-Report,court-of-chancery-clarifies-delaware-counsels-role-in-discovery.
The three key points made by Vice Chancellor Laster in his opinion were: More ›
This is the fifth in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Kan-Di-Ki, LLC (d/b/a Diagnostic Laboratories) v. Robert Suer, C.A. No. 7937–VCP, Oral Argument on Various Outstanding Motions, Pre-Trial Conference and Rulings of the Court on Motion for Summary Judgment, September 24, 2014.
While various motions were addressed at this hearing before Vice Chancellor Parsons, the most relevant to eDiscovery was the Plaintiff’s Motion for Sanctions for suppression or spoliation of evidence, including the deletion of relevant emails and the loss of unpreserved text messages which the Plaintiff argued pointed to a “pattern of suppression” on the part of the Defendant. Plaintiff requested that the Court draw broad adverse inferences against the Defendant and afford his testimony no weight. Additionally, the Plaintiff requested fees and costs associated with the motion. More ›
Earlier this year, proposed amendments to the Federal Rules of Civil Procedure were submitted to the United States Supreme Court for review following a years long process that began in 2010. The proposed amendments will become effective on December 1, 2015 barring any action by either the Supreme Court or Congress to modify them.
Circuit splits and a lack of uniform standards have plagued eDiscovery for some time. The proposed amendments attempt to bring uniformity to the body of eDiscovery law that has been developing since the early 2000s. The proposed amendments also seek to address litigants’ concerns that eDiscovery has in the past been used as a weapon to force settlement upon those who cannot afford to engage in the process. To that end the proposed amendments address proportionality and the scope of discovery.
These amendments will most likely eventually be adopted by various States as well. For a full discussion by the Advisory Committee on Federal Rules of Civil Procedure and a list of all of the Committee’s proposed amendments, see the March 2014 and September 2014 Reports of the Judicial Conference Committee on Rules of Practice and Procedure, available here [http://www.uscourts.gov/rules-policies/records-and-archives-rules-committees/committee-reports]. More ›
This is the fourth in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
In re ISN Software Corporation Appraisal Litigation, C.A. No. 8388–VCG, Oral Argument on Petitioners' Third and Fourth Motions to Compel and Partial Rulings by the Court, September 12, 2014. More ›
This summer one current and one former United States District Court Judge took to the interview circuit on the topic of eDiscovery. The most common theme was that lawyers have the obligation to understand both the law and technology. More ›
This is the third in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
Herbert Chen and Derek Sheeler v. Robert Howard-Anderson, Steven Krausz, Robert Abbott, Robert Bylin, Thomas Pardun, Brian Strom, Albert Moyer, Jeanne Seeley, and Occam Networks, Inc., C.A. No. 5878–VCL, Oral Argument on Plaintiffs' Motion to Compel Production of Documents by Defendants and Jefferies and for Sanctions Against Defendants and the Court's Rulings, September 4, 2014.
While the Chen v. Howard-Anderson case has been discussed in the corporate arena as an important case relating to Delaware fiduciary law, 102(b)(7) exculpatory provisions, and Revlon duties, the case also highlights the importance of transparency in the discovery process. Chen is a reminder of how seriously the Courts in Delaware treat counsel’s discovery obligations. More ›
This is the second in a series of posts summarizing the 7 most important eDiscovery cases in Delaware in 2014.
The second case is 112359 Factor Fund, LLC and Five Nine Group, LLC v. Flux Carbon Starter Fund, LLC, Mary Carroll, Kevin Kreisler, and James L. Sonageri, C.A. No. 9568–VCL, Telephonic Oral Argument on Plaintiffs' Motion to Compel and Rulings of the Court, 06/20/2014.
In response to Plaintiffs' Motion to Compel, the Defendants claimed they did not have sufficient time or resources to review all 73,000 documents yielded by the search terms used. Vice Chancellor Laster was not swayed by these arguments. An Order had been entered earlier in the case requiring the parties to not only meet and confer regarding search terms, but to also "do more than the standard" and "confer regarding the use of an early data assessment tool…to focus on the custodians and time periods most likely to have responsive electronic documents”. Defendants’ reasons for missing the production deadline included delays in collecting the documents from their clients and insufficient manpower to properly review them. The Vice Chancellor found these explanations to be insufficient. The Court explained that in an expedited case, the parties need to think about approaches other than the “old school attorney-by-attorney review”. Had an early data assessment tool been appropriately used, as instructed, the number of search hits would not have come as a surprise and counsel could have thought ahead and planned appropriately to meet the discovery deadlines. The Court ordered that a copy of the transcript be given to Defendants clients, to help them understand that not complying with a discovery order will have serious consequences. More ›
The Court of Chancery continued to focus on eDiscovery throughout 2014. During the next few weeks we will be recapping 7 cases that covered various topics including preservation, designation of confidential material and the drafting of privilege logs. We will cover the cases in chronological order.
The first case is Sustainable Biofuels Solutions, LLC v. Tekgar, LLC and Michael Catto, C.A. No. 8741--VCP, Oral Argument on Plaintiff’s Motion to Compel and for Sanctions, Defendants’ Motion to Dismiss, and Rulings of the Court, 01/28/2014
In this dispute between a joint venture entity and one of its founding members, Plaintiff filed a Motion to Compel based on Defendants’ untimely production of emails, their blanket designation of 21,000 produced documents as Attorneys’ Eyes Only in violation of a Confidentiality Order, and lack of transparency throughout the eDiscovery process.
Before addressing the Motion to Compel, Vice Chancellor Parsons first reminded the parties of the Supreme Court case Christian v. Counseling Resources Associates, where the Supreme Court put litigants on notice that if they act without Court approval in modifying a scheduling order, they do so at their own risk. By choosing not to involve the Court, the party waives its right to dispute the opposing party’s late filings going forward. The Supreme Court advised that the best way to still “avoid motion practice and ill-will by agreeing to reasonable extension requests…[is to] promptly file a proposed amended scheduling order for the trial court’s signature.”
The court next found that the Defendants had failed to comply with their obligations under the confidentiality order by designating over 21,000 documents as Attorneys' Eyes Only. Under the order, designation required review by an attorney and a good faith basis for such designation. The court stated that "there is no way that an attorney could have looked at these documents and made a reasonable determination that there was a good faith basis for designating them as Confidential - Attorneys' Eyes Only..." The Defendants stated that they received the documents from their client at a late date and thus were rushed in their review. This necessitated the overdesignation of the documents.
Given that Vice Chancellor Parsons felt the Plaintiff had notified the Court “pretty promptly” of the discovery issues and that the Defendants had failed to comply with their obligations under the Confidentiality Order, the Court imposed sanctions of $10,000 in attorneys’ fees against the Defendants and gave them a strict deadline to complete any necessary dedesignations. The Defendants were further ordered to answer the Plaintiff’s questions regarding how they unilaterally refined the agreed-upon search terms and exactly what files were searched and to generally operate with a greater degree of transparency.
Three key takeaways can be taken from this case. First, if an attorney is unsure of who to proceed on eDiscovery issues, he or she should reach out to a colleague or vendor for guidance and assistance. The Vice Chancellor wrote that “It’s not unusual in cases of this type and in many, probably the majority, of the cases in the Court of Chancery that electronic discovery is proceeding by way of search terms and searches of custodians. That’s the way it’s usually done. If it’s a surprise to any attorney…then that attorney needs to associate himself or herself with people who know what they’re doing and are more familiar with it.”
The second takeaway is that the court should be promptly informed of any agreement regarding changes to a CMO.
Finally, parties need to factor in the time it takes to actually review documents in order to avoid situations such as confidentiality or privilege overdesignations. Parties should give themselves more than enough time to factor in the perhaps most important step between collection and production...attorney review of documents.
The entire transcript can be found here: Transcript of Sustainable Biofuels v. Tekgar
When people think of high risk data, most think of Personal Health Information and Personally Identifiable Information as it relates to HIPAA and the health care industry, but Steve Shebest's very informative article "High Risk Data: Have a Plan!" explains how high risk data can also be found in the financial, commercial, transportation, industrial, and other highly regulated sectors.
The cost of a breach, which is more likely to occur during the discovery process, can be high and can take the form of not only monetary costs, but also indirect costs such as reputational loss and diminished goodwill among customers and the public. In order to mitigate the risk of data breach, it is critical to understand the three weak points of the discovery process (at collection, at data transfer, and once in the hands of third parties such as vendors and partners) and proactively implement a plan, both internally and with business partners, to minimize the risks.
Some of the strategies suggested are performing targeted collections to either eliminate the need to collect high risk data or at least reduce and identify it (in order to subject it to a different workflow), making sure data is encrypted during transfer, and having in-depth discussions with partners and vendors that address any potential weak points in the way they process, host, review, and produce the data. All of these strategies should be used proactively, at the outset of an engagement, rather than waiting for a breach to occur.
The ultimate lesson is that in the midst of sometimes frantic eDiscovery, counsel cannot lose sight of the importance of data transfer security, having a strong contract with a vendor outlining security duties, and an awareness of what is actually being harvested from the client.