eDiscovery Daily Blog

• January 28, 2011

Since it’s awards season, we thought we would get into the act from an eDiscovery standpoint.  Sure, you have Oscars, Emmys and Grammys – but what about “EDDies”?  (I’ll bet you wondered what Eddie Munster could possibly have to do with eDiscovery, didn’t you?)

So, we’re conducting a ‘little experiment’ to see what the readers of eDiscoveryDaily think about case law developments in 2010.  This is our first annual “EDDies” award to select the case with the most significant impact on eDiscovery practices in 2010.  No cash or prizes being awarded, or even a statuette, but a chance to see what the readers think was the most important case of the year from an eDiscovery standpoint.

We have “nominated” five cases below, which we feel were the most significant in different issues of case law, including duty to preserve and sanctions, clawback agreements under Federal Rule of Evidence 502, not reasonably accessible arguments and discoverability of social media content.  We have a link to review more information about each case, and a link at the bottom of this post to cast your vote.

Very Important!  You can vote anonymously, so we’re not using this as a “hook” to get your information.  You can click on the link at the bottom, select your case and be done with it.  However, we would welcome your comments as to why you selected the case you did and you can – optionally – identify yourself as well.  eDiscoveryDaily will publish selected comments to reflect opinion of the voters as well as the vote results on February 7.  Click here to cast your vote now!

So, here are the cases:

Duty to Preserve/Sanctions

• 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) – “Pension Committee”: The case that defined negligence, gross negligence, and willfulness in the electronic discovery context and demonstrated the consequences (via sanctions) resulting from those activities.  Judge Shira Scheindlin titled her 85-page opinion “Zubulake Revisited: Six Years Later”.  For more on this case, click here.
• Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 WL 3530097 (D. Md. 2010) – “Victor Stanley II”: The case of “the gang that couldn’t spoliate straight” where one of the defendants faced imprisonment for up to 2 years (subsequently set aside on appeal) and the opinion included a 12 page chart delineating the preservation and spoliation standards in each judicial circuit.  For more on this case, click here and here.

Clawback Agreements

• Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010) – “Rajala”: The case that addressed the applicability of Federal Rule of Evidence 502(d) and (e) for “clawback” provisions for inadvertently produced privileged documents.  For more on this case, click here.

Not Reasonably Accessible

• Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010) – “Major Tours”: The case that established a precedent that 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 caused the data not to be available via any other means.  For more on this case, click here.

Social Media Discovery

• Crispin v. Christian Audigier Inc., 2010 U.S. Dist. Lexis 52832 (C.D. Calif. May 26, 2010) – “Crispin”: The case that used a 24 year old law (The Stored Communications Act of 1986) to address whether ‘private’ data on social networks is discoverable.  For more on this case, click here.

If you feel that some other case was the most significant case of 2010, you can select that case instead.  Other notable cases include:

• Rimkus v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010): Where District Court Judge Lee Rosenthal examined spoliation laws of each of the 13 Federal Circuit Courts of Appeal.
• 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 (differing with “Pension Committee” in this manner).
• DeGeer v. Gillis, 2010 U.S. Dist. Lexis 97457(N.D. Ill. Sept. 17, 2010): Demonstration of inadvertent disclosure made FRE 502(d) effective, negating waiver of privilege.
• Takeda Pharmaceutical Co., Ltd. v. Teva Pharmaceuticals USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010): Defendants’ motion to compel the production of ESI for a period of 18 years was granted, with imposed cost-shifting.
• E.E.O.C. v. Simply Storage Management, LLC, 2010 U.S. Dist. Lexis 52766 (S.D. Ind. May 11, 2010): EEOC is ordered to produce certain social networking communications.
• McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010): Motion to Compel discovery of social network account log-in names and passwords was granted.

Click here to cast your vote now!  Results will be published in eDiscoveryDaily on February 7.

The success of this ‘little experiment’ will determine whether next year there is a second annual “EDDies” award.  😉

And, as always, please share any comments you might have or if you’d like to know more about a particular topic.