Electronic Discovery and Evidence

CA District Court Rejects Racing Tire - Awards over $700,000 in eDiscovery Costs

In Pierson v. Walmart.com USA LLC (In re : Online DVD Rental Antitrust Litig.), 2012 U.S. Dist. LEXIS 55951, at *41-42 (N.D. Cal. Apr. 20, 2012) the District Court judge awarded over $700,000 in eDiscovery costs specifically rejecting the  Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,F.3d , 2012 U.S. App. LEXIS 5511 (3d Cir. Mar. 16, 2012) decision.

Must Read: Predictive Coding - Judicial Test Pilot - Joshua Gilliland - “Bow Tie Law"

Joshua Gilliland, Esq., recently authored an article on the predictive coding issues raised in the da Silva opinion entitled Judicial Test Pilot on his Bowtie Law blog that is a must read. http://bowtielaw.wordpress.com/2012/04/27/judicial-test-pilot/

eDiscovery Conference - FREE PUBLICATIONS REMINDER

Register by April 30th to receive your FREE COPY of Arkfeld's eDiscovery publications.

You and your eDiscovery team won't want to miss the opportunity to hear from noted educators at the eDiscovery and Digital Evidence Conference and Symposium to be held on May 23, 24, and 25 at the Sandra Day O'Connor College of Law at Arizona State University in Tempe, Arizona.

 Register by April 30th and you will receive your complete set of Arkfeld on Electronic Discovery and Evidence publications (a $279 value) along with conference speaker materials. 

This conference is noted for its "practical, structured educational approach" to eDiscovery, with noted educators including Judge John M. Facciola and Judge Craig B. Shaffer, and many other top industry professionals.

As one past attended noted, "This has been the first "e-Discovery" seminar that I consider to have been worth the time and travel." - Bruce Freeman, Conners & Winters LLP

Click here for more information.

Magistrate Judge Andrew Peck's Decision on Predictive Coding is Affirmed by District Court

Opinion and Order  by the District Court affirming Judge Andrew Pecks' decision to allow "predictive coding" for review of ESI. For a copy of the opinoion go to LawCLECenter (www.lawclecenter.com) and register as a member (it's free) and then go to the "resources" page and download the Da Silva documents including the recent opinion.

Law Review Article - COOPERATION—WHAT IS IT AND WHY DO IT?

Judge David Waxse in this excellent article analyzes the reasons for non-cooperation among litigants and possible solutions.

David J. Waxse, Cooperation—What Is It and Why Do It?, XVIII RICH. J. L. & TECH. 8 (2012), http://jolt.richmond.edu/v18i3/article8.pdf.

Plaintiff Formally Request Judge's Recusal in Predictive Coding Case

The plaintiffs have formally requested the judge's recusal in the Da Silva predictive coding case. For a copy of the motion, judge's initial ruling and plaintiffs' objections to the ruling go to LawCLECenter (www.lawclecenter.com) and register as a member (it's free) and then go to the "resources" page and download the Da Silva documents including the recent motion.

Court Considers Ethical Issues and Adverse Inference Sanction for Failing to Preserve Former Client's E-mail

We knew this was going to happen - just a matter of time.

What legal and ethical obligation is your firm under regarding the preservation of a former client's e-mail?

In FDIC v. Malik,2012 U.S. Dist. LEXIS 41178 (E.D.N.Y. Mar. 26, 2012) the Court found that  former lawyers for a mortgage company had an ethical obligation and legal duty to preserve e-mails relating to their prior representation of a mortgage company, and their failure to do so may result in an adverse instruction.  As to the "duty to preserve" the Court noted: "A regulation requiring retention of certain documents can establish the preservation obligation necessary for an adverse inference instruction where the party seeking the instruction is 'a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.'"

The Court went on to note that, "plaintiff argues that the Malik defendants had a duty to preserve arising from professional responsibility rules and attorney ethics opinions.  . . . .(citing Assoc. of Bar of City of N.Y. Comm. On Prof. and Judicial Ethics, Formal Opinion 2008-1, A Lawyer's Ethical Obligations to Retain and Provide a Client with Electronic Documents (July 2008)) . . . The Malik defendants have not responded to that argument and have made no attempt to explain why those rules and ethics opinions, which require lawyers to preserve electronic documents relating to a representation and seek to protect clients such as AmTrust, do not trigger an actionable duty to preserve under Byrnie. Therefore, I conclude that the Malik defendants had a duty to preserve in 2008 when they represented AmTrust in the loan transactions at issue. I also note that the Malik defendants have not argued that this retention obligation excludes the types of emails at issue in the instant motion."

The Court went on to set the case for an evidentiary hearing on the request for sanctions.

If you wish to obtain a copy of this opinion, register as a member (free) at LawCLECenter(www.lawclecenter.com) and go to member "Resources" to download your copy.

Complimentary Webcast: The Law of Search Meets Computer-Assisted Review

Join us on April 24 at 1:00 EST for a complimentary webinar presentation to discuss legal and technological issues regarding electronic search and the recent focus on the use of computer-assisted review. 

Hear from some of the top educators including Judge John M. Facciola, Michael Arkfeld and Scott Kane who also will be teaching at the eDiscovery and Digital Evidence Conference and Symposium to be held on May 23-25, 2012 at the Sandra Day O’Connor College of Law at Arizona State University, located in Tempe, Arizona.

In "The Law of Search Meets Computer-Assisted Review" webinar the instructors will focus on:

• The law of search - reasonableness, search protocols, and cooperation
• Types of computer-assisted search - keyword, concept, and predictive coding
• Search protocol - iterative process, work product issues, sampling and defensibility considerations
• Importance of using computers to search - reduced costs, FRE 502 and clawback agreements
• Impact of the Da Silva Moore v. Publicis Groupe case

Click here to register for this complimentary webcast!

Plaintiffs' Request Recusal in Predictive Coding Case

The saga continues.

Apparently, the plaintiffs in a letter requested Judge Peck to recuse himself in the Da Silva Moore v. Publicis Groupe case after filing objections to the magistrate's order regarding predictive coding.

For a copy of the judge's initial ruling and plaintiffs' personal and legal objections to the ruling go to LawCLECenter (www.lawclecenter.com) and register as a member (it's free) and then go to the "resources" page and download the Da Silva documents including the recent order.

In response to the Letter for Recusal the Court ordered plaintiffs to make a decision whether the letter requesting recusal should be considered a "motion" to recuse.

The Court stated,

"The Court is in receipt of plaintiffs' March 28, 2012 letter requesting my recusal. Plaintiffs shall advise as to whether they wish to file a formal motion or for the Court to consider the letter as the motion (in which case defendants will have 14 days to respond, from the date of plaintiffs' confirmation that the letter constitutes their motion).

The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case.

It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their "scorched earth" approach to this litigation. SO ORDERED. Dated: April 2, 2012."