Showing 4 posts in Confidentiality.

Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware - Part 4

This is the fourth in a series of posts summarizing the six most important eDiscovery cases in Delaware in 2015.

Medicalgorithmics S.A. v. AMI Monitoring, Inc., C.A. No. 10948-CB, Oral Argument on Defendants’ Motion Regarding Plaintiff’s Improper Document Production, Plaintiff’s Cross-Motion for Defendants to Supplement Their Deficient Document Production, Discovery Issue Regarding Location of Depositions and Rulings of the Court, July 15, 2015.

This case dealt with cross-motions regarding deficient document productions in which the Plaintiff argued Defendants produced too few documents and Defendants argued Plaintiff produced too many. More ›

Looking Back on 2014: The 7 Most Important eDiscovery Cases in Delaware - Part 1

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 is a clawback not a clawback?

When it's a quick peek, as was ordered in ACS State Healthcare, LLC v. Wipro, Inc. and Wipro, Ltd., No. 4385-VCP ( Del. Ch., July 23, 2009).  This is believed to be the first order of its kind in Delaware and continues the Court of Chancery's recent trend of providing eDiscovery guidance to Delaware practitioners.

The title of this post may be a bit misleading though and may simply reflect my own ignorance of the true distinction between quick peek and clawback.  (Or maybe I'm being pedantic.)  Certainly, there are clawback provisions in this order, but the production of documents without review is what makes this a quick peek.  The two are often presented as alternative means of protecting privilege waiver in eDiscovery, but it seems that clawback protects privilege while quick peek shifts costs.  So quick peek is really clawback plus cost-shifting?

The State of eDiscovery in Delaware, Pt. I

Posted In Confidentiality, Proportionality, Top Cases

Hello and welcome to the Delaware eDiscovery Report!  We will be tracking all manner of developments in the realm of eDiscovery, including federal and state case law and rule developments, emerging trends and discussions from groups like The Sedona Conference® and EDRM, vendor technology developments, and project management techniques.  Besides tracking eDiscovery developments generally, this blog will pay particular attention to eDiscovery developments under Delaware law.

With an increasing number of states adopting eDiscovery rules (mostly mirroring the Federal Rules), it may surprise many of you to know that Delaware has not adopted any such rules.  There is, of course, case law on the subject, and I'd like to kick off the Delaware eDiscovery Report with a chronological development of the significant EDD cases I could find, bringing us all up to speed on the state of eDiscovery in the First State.

Here's the first of multiple installments:

The earliest cases I could find are from way back in the dark ages of eDiscovery—1992 and 1997.  The decisions are from the days before ESI volumes were unwieldy, so the courts are dealing with applying long-standing legal principles of privilege to the newly prevalent electronic medium and the electronic documents it creates.

In March 1992, the Delaware Superior Court decided IBM v. Comdisco, Inc., 1992 WL 52143, finding a portion of an email was privileged in a suit over equipment leasing.  IBM produced an email then asked for its return, because they asserted it contained information protected by the attorney/client privilege.  Comdisco argued the email was not privileged, because it contained business advice, not legal advice.  The Court found a small portion of the email “was clearly intended to be disclosed to persons outside the circle of confidentiality” so not privileged, but found the remainder of the communication privileged and confidential legal advice.

Five years later, in Wesley College v. Pitts, 1997 WL 557554 (Aug. 11, 1997), the Delaware District Court found that an email sent to multiple third parties and introduced into the public record is not protected work-product.  One of the Defendants sought relief from a protective order restricting use of documents marked Confidential to the instant matter and no other; Defendant sought to use, in a related state case, an email marked Confidential by plaintiff in this case.  Plaintiff claimed, inter alia, that the email was protected work-product.  The Court noted that one of plaintiff’s employees sent the email to several other employees and his wife, and plaintiff introduced the email into the record in a hearing on a Motion for Summary Judgment in this case, all of which amounted to removing the possibility of work-product protection.

There doesn't seem to be anything significant for another five years when the vaunted Court of Chancery plunges into the eDiscovery morass by tangling with the issue of backup tape restoration.  We’ll pick up with that case in Part II.  In the meantime, if you know of significant Delaware eDiscovery cases prior to 2002 that you think I should have included, please post a comment to let everyone know.