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Electronic Discovery

eDiscovery Best Practices: Database Discovery Pop Quiz ANSWERS
 

So, how did you do?  Did you know all the answers from Friday’s post – without “googling” them?  😉

Here are the answers – enjoy!

What is a “Primary Key”? The primary key of a relational table uniquely identifies each record in the table. It can be a normal attribute that you expect to be unique (e.g., Social Security Number); however, it’s usually best to be a sequential ID generated by the Database Management System (DBMS).

What is an “Inner Join” and how does it differ from an “Outer Join”?  An inner join is the most common join operation used in applications, creating a new result table by combining column values of two tables.  An outer join does not require each record in the two joined tables to have a matching record. The joined table retains each record in one of the tables – even if no other matching record exists.  Sometimes, there is a reason to keep all of the records in one table in your result, such as a list of all employees, whether or not they participate in the company’s benefits program.

What is “Normalization”?  Normalization is the process of organizing data to minimize redundancy of that data. Normalization involves organizing a database into multiple tables and defining relationships between the tables.

How does a “View” differ from a “Table”?  A view is a virtual table that consists of columns from one or more tables. Though it is similar to a table, it is a query stored as an object.

What does “BLOB” stand for?  A Binary Large OBject (BLOB) is a collection of binary data stored as a single entity in a database management system. BLOBs are typically images or other multimedia objects, though sometimes binary executable code is stored as a blob.  So, if you’re not including databases in your discovery collection process, you could also be missing documents stored as BLOBs.  BTW, if you didn’t click on the link next to the BLOB question in Friday’s blog, it takes you to the amusing trailer for the 1958 movie, The Blob, starring a young Steve McQueen (so early in his career, he was billed as “Steven McQueen”).

What is the different between a “flat file” and a “relational” database?  A flat file database is a database designed around a single table, like a spreadsheet. The flat file design puts all database information in one table, or list, with fields to represent all parameters. A flat file is prone to considerable duplicate data, as each value is repeated for each item.  A relational database, on the other hand, incorporates multiple tables with methods (such as normalization and inner and outer joins, defined above) to store data efficiently and minimize duplication.

What is a “Trigger”?  A trigger is a procedure which is automatically executed in response to certain events in a database and is typically used for keeping the integrity of the information in the database. For example, when a new record (for a new employee) is added to the employees table, a trigger might create new records in the taxes, vacations, and salaries tables.

What is “Rollback”?  A rollback is the undoing of partly completed database changes when a database transaction is determined to have failed, thus returning the database to its previous state before the transaction began.  Rollbacks help ensure database integrity by enabling the database to be restored to a clean copy after erroneous operations are performed or database server crashes occur.

What is “Referential Integrity”?  Referential integrity ensures that relationships between tables remain consistent. When one table has a foreign key to another table, referential integrity ensures that a record is not added to the table that contains the foreign key unless there is a corresponding record in the linked table. Many databases use cascading updates and cascading deletes to ensure that changes made to the linked table are reflected in the primary table.

Why is a “Cartesian Product” in SQL almost always a bad thing?  A Cartesian Product occurs in SQL when a join condition (via a WHERE clause in a SQL statement) is omitted, causing all combinations of records from two or more tables to be displayed.  For example, when you go to the Department of Motor Vehicles (DMV) to pay your vehicle registration, they use a database with an Owners and a Vehicles table joined together to determine for which vehicle(s) you need to pay taxes.  Without that join condition, you would have a Cartesian Product and every vehicle in the state would show up as registered to you – that’s a lot of taxes to pay!

If you didn’t know the answers to most of these questions, you’re not alone.  But, to effectively provide the information within a database responsive to an eDiscovery request, knowledge of databases at this level is often necessary to collect and produce the appropriate information.    As Craig Ball noted in his Law.com article Ubiquitous Databases, “Get the geeks together, and get out of their way”.  Hey, I resemble that remark!

So, what do you think?  Did you learn anything?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Best Practices: Database Discovery Pop Quiz
 

Databases: You can’t live with them, you can’t live without them.

Or so it seems in eDiscovery.  On a regular basis, I’ve seen various articles and discussions related to discovery of databases and other structured data and I remain very surprised how few legal teams understand database discovery and know how to handle it.  A colleague of mine (who I’ve known over the years to be honest and reliable) even claimed to me a few months back while working for a nationally known eDiscovery provider that their collection procedures actually excluded database files.

Last month, Law.com had an article written by Craig Ball, called Ubiquitous Databases, which provided a lot of good information about database discovery. It included various examples how databases touch our lives every day, while noting that eDiscovery is still ultra document-centric, even when those “documents” are generated from databases.  There is some really good information in that article about Database Management Software (DBMS), Structured Query Language (SQL), Entity Relationship Diagrams (ERDs) and how they are used to manage, access and understand the information contained in databases.  It’s a really good article especially for database novices who need to understand more about databases and how they “tick”.

But, maybe you already know all you need to know about databases?  Maybe you would already be ready to address eDiscovery on your databases today?

Having worked with databases for over 20 years (I stopped counting at 20), I know a few things about databases.  So, here is a brief “pop” quiz on database concepts.  Call them “Database 101” questions.  See how many you can answer!

  • What is a “Primary Key”? (hint: it is not what you start the car with)
  • What is an “Inner Join” and how does it differ from an “Outer Join”?
  • What is “Normalization”?
  • How does a “View” differ from a “Table”?
  • What does “BLOB” stand for? (hint: it’s not this)
  • What is the different between a “flat file” and a “relational” database?
  • What is a “Trigger”?
  • What is “Rollback”? (hint: it has nothing to do with Wal-Mart prices)
  • What is “Referential Integrity”?
  • Why is a “Cartesian Product” in SQL almost always a bad thing?

So, what do you think?  Are you a database guru or a database novice?  Please share any comments you might have or if you’d like to know more about a particular topic.

Did you think I was going to provide the answers at the bottom?  No cheating!!  I’ll answer the questions on Monday.  Hope you can stand it!!

Managing an eDiscovery Contract Review Team: Clearly Define Objectives
 

Yesterday, we introduced the blog series to discuss Managing an eDiscovery Contract Review Team.  Now, it’s time to get started!  The first step in preparing for a document review is to very clearly define the objectives of the review.  It’s an easy step, but it’s very important.  It will drive several subsequent decisions that you’ll make regarding management of the project. 

Here are some likely objectives you may choose:

  • Identify responsive documents
  • Identify privileged documents
  • Identify documents to be reviewed by an expert
  • Identify significant helpful and harmful documents

The choices you make here will affect the type of people you’ll assign to the review, the amount of time the review will take, the type of criteria you’ll need to draft, and the level of training you’ll need to do.

How do you make these decisions?  There are a few factors that should affect your choices:

  • The nature of the case and the nature of the document collection:  What type of case are you handling and what types of documents are in the collection?  If the case involves highly technical or scientific subject matter, you may need to train the review staff to segregate those documents that require review by an expert.
  • Where are you on the case and what do you know so far?  If you don’t know much yet about the case and what will be important, you won’t be in a position to ask reviewers to recognize significant materials.
  • What’s the pool of available reviewers?  Can you easily pull together a team that’s qualified to identify potentially privileged or significant documents?   If you need a very large team, you might be better off working with a team that can more easily focus on objective criteria, and use a smaller group of attorney staff to work with a smaller collection after the initial review.

Determine the objectives that will work best for your case and that can be accomplished with the available resources.  Make sure that the objectives are clearly defined and that everyone on the litigation team understands the objectives and has the same expectations.

What do you look to accomplish with an eDiscovery document review?  Have you had objectives in addition to those listed above?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

Managing an eDiscovery Contract Review Team: Introduction
 

In a perfect world, attorneys responsible for a case would review an entire document collection for responsive materials.  On large cases with huge collections, that’s just not practical or possible.  In those situations, your only choice may be to pull together a team of contract reviewers to identify responsive materials.  

How well does this work?  A review done by a contract review team will certainly cost less than one done by a team of law firm attorneys.  More likely than not, it will be done more efficiently.  And if there’s good preparation and management, the quality will be just as good (in fact, it may be better because a contract staff is more likely to stay better focused on the inevitable, more mundane aspects of the work).

I’ve managed many successful review projects done by teams of contract employees.  Sometimes those teams were made up of attorneys, but more often they included mostly paralegals and college-educated lay personnel with good reading and comprehension skills.  These projects were successful because they were structured and managed in a way where decision-making responsibility was in the hands of the attorneys, but there were effective mechanisms in place for disseminating those decisions to the team.  In this blog series, I’m going to walk through how to do this.  Specifically, we’ll be covering:

  • Clearly defining the objectives of the document review
  • Getting a handle on the document collection
  • Determining the right mix of people for the project
  • Creating effective document review criteria
  • Effectively training the review team
  • Managing the project
  • Disseminating updated project information
  • Implementing effective quality control procedures

What has been your experience with contract review teams for large projects?  Do you have good or bad experiences you can tell us about?  Are there any specific problems you’ve had with review teams?  Please share any comments you might have and let us know if you’d like to know more about an eDiscovery topic.

eDiscovery Trends: 2011 Predictions — By The Numbers
 

Comedian Nick Bakay”>Nick Bakay always ends his Tale of the Tape skits where he compares everything from Married vs. Single to Divas vs. Hot Dogs with the phrase “It's all so simple when you break things down scientifically.”

The late December/early January time frame is always when various people in eDiscovery make their annual predictions as to what trends to expect in the coming year.  We’ll have some of our own in the next few days (hey, the longer we wait, the more likely we are to be right!).  However, before stating those predictions, I thought we would take a look at other predictions and see if we can spot some common trends among those, “googling” for 2011 eDiscovery predictions, and organized the predictions into common themes.  I found serious predictions here, here, here, here and here.  Oh, also here and here.

A couple of quick comments: 1) I had NO IDEA how many times that predictions are re-posted by other sites, so it took some work to isolate each unique set of predictions.  I even found two sets of predictions from ZL Technologies, one with twelve predictions and another with seven, so I had to pick one set and I chose the one with seven (sorry, eWEEK!). If I have failed to accurately attribute the original source for a set of predictions, please feel free to comment.  2) This is probably not an exhaustive list of predictions (I have other duties in my “day job”, so I couldn’t search forever), so I apologize if I’ve left anybody’s published predictions out.  Again, feel free to comment if you’re aware of other predictions.

Here are some of the common themes:

  • Cloud and SaaS Computing: Six out of seven “prognosticators” indicated that adoption of Software as a Service (SaaS) “cloud” solutions will continue to increase, which will become increasingly relevant in eDiscovery.  No surprise here, given last year’s IDC forecast for SaaS growth and many articles addressing the subject, including a few posts right here on this blog.
  • Collaboration/Integration: Six out of seven “augurs” also had predictions related to various themes associated with collaboration (more collaboration tools, greater legal/IT coordination, etc.) and integration (greater focus by software vendors on data exchange with other systems, etc.).  Two people specifically noted an expectation of greater eDiscovery integration within organization governance, risk management and compliance (GRC) processes.
  • In-House Discovery: Five “pundits” forecasted eDiscovery functions and software will continue to be brought in-house, especially on the “left-side of the EDRM model” (Information Management).
  • Diverse Data Sources: Three “soothsayers” presaged that sources of data will continue to be more diverse, which shouldn’t be a surprise to anyone, given the popularity of gadgets and the rise of social media.
  • Social Media: Speaking of social media, three “prophets” (yes, I’ve been consulting my thesaurus!) expect social media to continue to be a big area to be addressed for eDiscovery.
  • End to End Discovery: Three “psychics” also predicted that there will continue to be more single-source end-to-end eDiscovery offerings in the marketplace.

The “others receiving votes” category (two predicting each of these) included maturing and acceptance of automated review (including predictive coding), early case assessment moving toward the Information Management stage, consolidation within the eDiscovery industry, more focus on proportionality, maturing of global eDiscovery and predictive/disruptive pricing.

Predictive/disruptive pricing (via Kriss Wilson of Superior Document Services and Charles Skamser of eDiscovery Solutions Group respective blogs) is a particularly intriguing prediction to me because data volumes are continuing to grow at an astronomical rate, so greater volumes lead to greater costs.  Creativity will be key in how companies deal with the larger volumes effectively, and pressures will become greater for providers (even, dare I say, review attorneys) to price their services more creatively.

Another interesting prediction (via ZL Technologies) is that “Discovery of Databases and other Structured Data will Increase”, which is something I’ve expected to see for some time.  I hope this is finally the year for that.

Finally, I said that I found serious predictions and analyzed them; however, there are a couple of not-so-serious sets of predictions here and here.  My favorite prediction is from The Posse List, as follows: “LegalTech…renames itself “EDiscoveryTech” after Law.com survey reveals that of the 422 vendors present, 419 do e-discovery, and the other 3 are Hyundai HotWheels, Speedway Racers and Convert-A-Van who thought they were at the Javits Auto Show.”

So, what do you think?  Care to offer your own “hunches” from your crystal ball?  Please share any comments you might have or if you’d like to know more about a particular topic.

State eDiscovery Rules: Wisconsin Adopts Amendments to Rules for eDiscovery
 

On November 1 of last year, we noted on this blog that Oklahoma had become the latest state to adopt amendments to their Rules of Civil Procedure, leaving only 14 states (including DC) to not have enacted any rules changes that address discovery of ESI as of January 1st of this year.

That’s because on January 1, Wisconsin became the latest state to adopt eDiscovery amendments to their Rules of Civil Procedure.  The amendments affect the following Wisconsin Statutes:

  • §§ 802.10(3)(jm) – Scheduling Order: The scheduling order may address the need for discovery of ESI, which focuses early attention on eDiscovery issues.
  • §§ 804.01(4m) – Discovery Conference: The parties must confer regarding discovery of ESI unless excused by the court (required meet and confer).  The required issues to be discussed include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of proposed discovery (including the extent to which such costs shall be limited).
  • §§ 804.08(3) – Business Records: Parties have the option to produce or allow access to business records in response to an interrogatory.
  • §§ 804.09(1) and (2) – Format of Production: Requesting party may specify “form” of production of ESI and, if no form is requested, information must be produced in the form in which it is ordinarily maintained or in a “reasonably usable form”.
  • §§ 804.12(4m) – Safe Harbor: Contains a safe harbor provision to protect a party who destroys information in good faith according to a routine records retention policy.
  • §§ 805.07(2) – Subpoena: Protect parties from the unreasonable burden of responding to subpoenas asking for ESI by enabling the producing party to produce information in the form in which it is ordinarily maintained or in a “reasonably usable form” and also by permitting testing or sampling of the information instead of inspection of copying.

The required meet and confer provision – §§ 804.01(4m) – was adopted, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory meet and confer rule.  The strong dissent expressed the concern that the requirement “has the potential to diminish both fairness and efficiency along with the potential of increasing the time and expense of litigation” and noted that, unlike the federal courts, Wisconsin state courts “do not have many cases involving a large number of documents and electronic discovery disputes” and that such a rule would “impose ‘significant added burden on litigants while yielding little benefit.'”  It concluded with a call to “judges, lawyers, and litigants from around the state to monitor this new mandate, and if it is not working, [to] petition the court for change.”

So, what do you think?  Wondering where your state stands?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Crispin v. Christian Audigier Inc.

Yesterday, we took a look at “Major Tours, Inc. v. Colorel”, which addresses whether a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold resulted in the data only being available on those backup tapes.

Discoverability of social media content has been a big topic this year, with several cases addressing the issue, including this one, previously discussed on eDiscovery Daily.  The holiday week look back at cases concludes with Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010), which addresses whether ‘private’ data on social networks is discoverable.

This copyright infringement claim brought by artist Buckley Crispin against defendant and designer Christian Audigier, alleges that Audigier used artwork outside the scope of the original oral license between the parties and also sub-licensed the artwork to other companies and individuals (named as co-defendants) without Crispin’s consent.  The defendants served subpoenas on social media providers Facebook, MySpace, and Media Temple, directing them to turn over all communications between Crispin and Audigier, as well as any communications referencing the co-defendants.

Crispin sought to quash the subpoenas, arguing that they sought private electronic communications protected under the Stored Communications Act of 1986 (SCA), prohibiting Electronic Communication Services (ECS) and Remote Computing Services (RCS) providers from turning over those communications, but the motion was denied because Magistrate Judge John E. McDermott determined that Facebook, MySpace, and Media Temple did not qualify for protection from disclosure under the SCA.  Crispin moved for reconsideration with the U.S. District Court for the Central District of California.

District Court Judge Margaret Morrow’s decision partially reversed and partially vacated Judge McDermott’s order, finding that the SCA’s protections (and associated discovery preclusions) include at least some of the content hosted on social networking sites, including the private messaging features of social networking sites protected as private email.  She also concluded that because Facebook, MySpace, and Media Temple all provide private messaging or email services as well as electronic storage, they all qualify as both ECS and RCS providers, with appropriate SCA protections.

However, regarding Facebook wall postings and MySpace comments, Judge Morrow determined that there was insufficient evidence to determine whether these wall postings and comments constitute private communications as the user’s privacy settings for them were less clear and ordered a new evidentiary hearing regarding the portions of the subpoenas that sought those communications.

This opinion sets a precedent that, in future cases, courts may allow protection to social networking and web hosting providers from discovery based on SCA protections as ECS and RCS providers and may consider social media ESI protected, based on the provider’s privacy controls and the individual user’s privacy settings.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

Happy New Year from all of us at Trial Solutions and eDiscovery Daily!

eDiscovery Case Law: Major Tours v. Colorel

Yesterday, we took a look at “Rajala v. McGuire Woods”, Judge David Waxse’s opinion regarding the applicability of Federal Rule of Evidence 502(d) and (e) in McGuire Woods’ request for a clawback provision for privileged documents.

The holiday week look back at cases continues with Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010), which addresses whether a party may obtain a Protective Order relieving it of the duty to access backup tapes, even when that party’s failure to issue a litigation hold resulted in the data only being available on those backup tapes.

Major Tours appealed a 2009 Magistrate Judge’s order concluding that certain backup tapes were not reasonably accessible under Rule 26(b)(2)(B) and that the plaintiffs had not shown good cause to require their production under the seven factor test set forth in the Advisory Committee Notes to Rule 26(b)(2)(B). The Magistrate Judge made this determination despite finding that the defendant, Michael Colorel, had not instituted adequate litigation hold notices until several years after the duty to preserve had attached.

Upon appeal to U.S. District Court Judge Jerome Simandle, Major Tours claimed that the Magistrate Judge had not given “appropriate weight to the defendants’ culpability for the emails being inaccessible, given that the reason for the increased cost of recovery was the defendants’ failure to institute a timely and effective litigation hold.” and also argued that a party cannot rely on Rule 26(b)(2)(B) if that party’s negligence caused the inaccessibility of the requested data in the first place.

Judge Simandle first addressed “whether, as a matter of law, a protective order under Rule 26(b)(2)(B) can ever be granted to a party when the evidence is inaccessible because of that party’s failure to institute a litigation hold” and concluded that “no such bright line rule exists.”, finding that Colorel’s culpability in failing to preserve the information did not override application of the multi-factor good cause test under Rule 26(b)(2)(B). Judge Simandle cited the decision in Disability Rights Council of Greater Washington v. Washington Metropolitan Transit, 242 F.R.D. 139 (D.D.C. 2007), in which Magistrate Judge John M. Facciola considered the same issue and “concluded that the proper approach was to balance the defendants’ culpability as one factor in the seven factor analysis.”  Judge Simandle noted that “The Rules compel exactly this discretionary balancing of costs and benefits of discovery, not a bright line requirement of production, no matter how burdensome, how likely to succeed, or how necessary to the litigation, if a party fails to adequately preserve every byte of previously accessible data.”

As to whether the magistrate judge adequately considered defendants’ culpability, Judge Simandle found that he did and affirmed his order, noting that considering the volume of evidence produced by Colorel, the backup tapes were “likely to produce evidence of only marginal, cumulative benefit and at great expense” and that “this outweighed the slim likelihood of the discovery of non-cumulative evidence even if there was some unknown degree of negligent spoliation.”

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Case Law: Rajala v. McGuire Woods

Yesterday, we took a look at “Pension Committee”, Judge Shira Scheindlin’s significant opinion regarding the duty for plaintiffs (as well as defendants) to preserve ESI and sanctions for failing to live up to that duty.

The holiday week look back at cases continues with Rajala v. McGuire Woods LLP, (D. Kan. July 22, 2010), which addresses the applicability of Federal Rule of Evidence 502(d) and (e) in McGuire Woods’ request for a clawback provision for privileged documents.

As part of negotiations over an appropriate protective order covering the treatment of confidential information, defendant McGuire Woods drafted a proposed order that included a clawback provision. Plaintiff opposed inclusion of a clawback provision in the agreement, arguing that the protective order should not deal with privilege issues and that “[t]he parties are free to enter stipulations at other times over other discovery issues, including … waiver of privileges and clawbacks… There is no need to force the issue here.” The protective order was subsequently entered without a clawback provision. After further meet and confer sessions, plaintiff still would not enter into a clawback agreement, and defendant filed a motion for entry of a clawback provision.

Agreeing with defendant’s arguments, the Court held that both Federal Rule of Civil Procedure 26(f) and Federal Rule of Evidence 502 contemplated the use of clawback provisions and that “entry of an order containing a clawback provision is not dependent on the agreement of the parties.” Because of the extensive amount of ESI in the litigation, and because defendant is a law firm with thousands of clients and a high risk of potential inadvertent disclosure, the Magistrate Judge concluded that defendant had made the requisite showing of good cause for entry of a clawback provision:

“[T]his case is precisely the type of case that would benefit from a clawback provision. Such a provision will permit the parties to conduct and respond to discovery in an expeditious manner, without the need for time-consuming and costly pre-production privilege reviews, and at the same time preserve the parties’ rights to assert the attorney-client privilege or work product immunity.”

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Sidley Austin LLP.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Pension Committee

This holiday week, we’re taking a look back at some of the cases which have had the most significance (from an eDiscovery standpoint) of the year.  The first case we will look at is The Pension Committee of the Montreal Pension Plan v. Banc of America Securities, LLC, 29010 U.S. Dist. Lexis 4546 (S.D.N.Y. Jan. 15, 2010) (as amended May 28, 2010), commonly referred to as “Pension Committee”.

In “Pension Committee”, New York District Court Judge Shira Scheindlin defined negligence, gross negligence, and willfulness from an eDiscovery standpoint and cementing her status as the most famous “Judge Scheindlin” in New York (as opposed to “Judge Judy” Sheindlin, who spells her last name without a “c”).  Judge Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later”.  The

This case addresses preservation and spoliation requirements of the plaintiff and information which should have been preserved by the plaintiffs after the lawsuit was filed. Judge Scheindlin addresses in considerable detail, defining the levels of culpability — negligence, gross negligence, and willfulness in the electronic discovery context.

Issues that constituted negligence according to Judge Scheindlin’s opinion included:

  • Failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players;
  • Failure to take all appropriate measures to preserve ESI;
  • Failure to assess the accuracy and validity of selected search terms.

Issues that constituted gross negligence or willfulness according to Judge Scheindlin’s opinion included:

  • Failure to issue a written litigation hold;
  • Failure to collect information from key players;
  • Destruction of email or backup tapes after the duty to preserve has attached;
  • Failure to collect information from the files of former employees that remain in a party’s possession, custody, or control after the duty to preserve has attached.

The opinion also addresses 1) responsibility to establish the relevance of evidence that is lost as well as responsibility to prove that the absence of the missing material has caused prejudice to the innocent party, 2) a novel burden-shifting test in addressing burden of proof and severity of the sanction requested and 3) guidance on the important issue of preservation of backup tapes.

The result: spoliation sanctions against 13 plaintiffs based on their alleged failure to timely issue written litigation holds and to preserve certain evidence before the filing of the complaint.

Scheindlin based sanctions on the conduct and culpability of the spoliating party, regardless of the relevance of the documents destroyed, which has caused some to label the opinion as “draconian”.  In at least one case, Orbit One Communications Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010)., Magistrate Judge James C. Francis concluded that sanctions for spoliation must be based on the loss of at least some information relevant to the dispute.  It will be interesting to see how other cases refer to the Pension Committee case down the road.

So, what do you think?  Is this the most significant eDiscovery case of 2010?  Please share any comments you might have or if you’d like to know more about a particular topic.