In a decision that highlights the uncertain terrain faced by US litigants involved in overseas discovery, the United States Bankruptcy Court for the District of Delaware held on October 28 that the Federal Rules of Civil Procedure trump a French “Blocking Statute” that restricts discovery. The Blocking Statute, French Penal Code Law No. 80-538, imposes criminal penalties on any French national or corporation that engages in discovery under a foreign judicial system without using the procedures of the Hague Evidence Convention—letters rogatory or letters of commission.
Scenario:A large company is defending itself in a breach of contract lawsuit. In order to prepare its defense, the company requests documents from the plaintiff that include electronically stored information (ESI). The company believes that plaintiff possesses certain emails and drafts of the contract that may refute plaintiff’s interpretation of the contract.
Scenario: A large, publicly traded manufacturing company is sued by a class of shareholders claiming various securities law violations as well as a failure to disclose the declining sales of one of the company’s manufactured items. The plaintiff class issues a subpoena for documents to a key supplier of the manufactured item at issue.
The long-running BALCO steroid investigation that led to the indictment of Major League Baseball (MLB) star Barry Bonds has resulted in a potentially landmark decision related to the manner in which government agents apply for and execute search warrants for electronically stored information (ESI). In United States v. Comprehensive Drug Testing, Inc., No. 15-10067 (9th Cir. Aug. 26, 2009), the en banc Ninth Circuit affirmed a lower court ruling ordering the government to return an overbroad set of electronic
data seized under a search warrant.
Scenario: A series of privileged communications between in-house counsel and the board of directors was unintentionally produced to the opposing side during the pre-deposition discovery period in a federal action. During the deposition of one of the board members, the opposing side submits the set of privileged documents as an exhibit. There is no agreement or court order on file in the case dealing with the inadvertent production of privileged documents.
In two related cases, a magistrate judge in the United States District Court for the Northern District of Oklahoma ordered IBM to produce documents from the company’s procurement ombudsman’s investigation of a dispute with a vendor. Accounting Principals, Inc. v. Manpower, Inc., 07-cv-636-TCK-PJC, 2009 WL 2252123 (N.D. Okla. July 28, 2009) and Pinstripe, Inc. v. Manpower, Inc., 07-cv-620-GKF-PJC, 2009 WL 2252137 (N.D. Okla. July 28, 2009) (IBM is a defendant in both cases).
Scenario: A whistleblower alerts authorities that brokers in a large brokerage firm may have violated a number of regulations regarding communications. The US Securities and Exchange Commission (SEC) commences an investigation regarding whether one broker “tweeted” about a pending hostile takeover on his Twitter account and whether another broker received insider information about the takeover on his “wall” after a client “blogged” about it on Facebook.
In a ruling that could potentially save clients millions of dollars in production and preservation costs, Judge Edward F. Harrington of the US District Court for the District of Massachusetts has denied plaintiffs’ motion in Dahl, et al. v. Bain Capital Partners, LLC, et al., requesting the production of all metadata associated with the emails and word documents produced by the defendants in the case.
On June 29, 2009, California Governor Arnold Schwarzenegger signed a new California law regarding electronic discovery that will affect most litigants in state court. A copy of the Electronic Discovery Act (the “Act”) is available at State of California’s Legislative Counsel’s website.
A company is sued by a class of investors. The investors issue a discovery request for a large number of data files that are only tangentially related to their claim.
The continuing expansion and virtually limitless array of technology and media available to store electronic information has had an immeasurable impact on the amount of information large organizations create and maintain. In many instances, this information continues to be available long after it has served the originator’s purposes. Yet, such information is not exempt from discovery in litigation, and attempting to identify, preserve, collect, review, and produce that information results in a significant burden on litigants, while the failure to do so can result in draconian sanctions or adverse publicity.
A multinational corporation is a defendant in a products liability action in a US federal court. During discovery, the plaintiffs request production of relevant emails from employees of an overseas affiliate of the defendant who are stationed in the Netherlands, France and Germany.
A large company is involved in a commercial litigation dispute that requires the collection and production of electronically stored information (ESI) maintained by its offices in the United States, Europe and Asia. During the Rule 26(f) conference, the parties discuss a variety of topics but do not discuss the fact that the large company intends to use keywords to search its servers for responsive ESI.
Scenario: A manufacturing company is sued by a class of consumers each of whom alleges to have suffered damage from a manufactured item. Information about the research and development, marketing and sales of this manufactured item is kept on a number of relational databases maintained by the company.
The boundaries of discovery have been tested by the prevalence of today’s advanced information technologies, making compliance during this crucial litigation stage more difficult and expensive. Covering every phase of electronic discovery for practitioners and researchers, PLI’s Electronic Discovery Deskbook provides the comprehensive, authoritative and compliance-enabling coverage that allows you to reduce the costs, complexities, and potential for legal conflicts that are part of this challenging process.
Mayer Brown's Electronic Discovery & Records Management practice's Tip of the Month series provides practical information for litigators, IS and other business professionals. This February 2009 edition addresses the process of instituting a litigation hold.
A decision that will be of interest to companies that have invested in reviewing and organizing discovery documents that may be relevant to adversaries or third parties in related cases has recently been issued by Judge Scheindlin of the US District Court for the Southern District of New York. In SEC v. Collins & Aikman Corp., No. 07 Civ. 2419, 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009), the court ruled that discovery respondents may not be permitted to produce an entire litigation database as it is “kept in the usual course of business,” normally one option under Rule 34 of Federal Rules of Civil Procedure, but, rather, must identify and produce particular documents that are responsive to specific document requests.
January 2009 - Remediation of legacy data is becoming an increasingly important component of effective information management policies and procedures. Legacy data generally consists of data that was retained outside an organization's routine records retention schedule and beyond any useful business purpose it once may have had, and yet continues to be retained due to fear that some small part of it might be relevant to pending or threatened litigation.
15 December 2008 - In an opinion that surely will be cited in the future to oppose overly broad and burdensome discovery requests, Chief Magistrate Judge Paul Grimm of the United States District Court for the District of Maryland analyzed legal arguments that can be used to help limit e-discovery costs, and offered support for the notion that litigants have a duty to engage in efficient and cooperative discovery.
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