Tag Archives: documents

Zubulake revisited: Shifting standards in e-discovery

InsideCounsel has a very insightful article regarding the changes in Zubulake.  As previously addressed, the Zubulake cases are the leading guide posts of electronic discovery.  Nevertheless, recent case law signals potential departures from Zubulake.

InsideCounsel’s article states as follows:

 

Litigation holds 101

While the American concept of the litigation hold (also known as legal hold) received a passing reference in the advisory notes to the 2006 Federal Rule of Civil Procedure (FRCP) amendments, it was not until Zubulake, and later, Pension Committee, that courts connected the legal hold to the spoliation sanction framework.

Generally, sanctions are warranted when a party with control over discoverable information and under a duty to preserve acted with a culpable state of mind when destroying or losing relevant information. Once a party has established spoliation, a court must assess which sanction (ranging from further discovery to dismissal) aligns with the culpability of the spoliating party and the prejudice caused.

In Pension Committee, the court held that failing to issue a litigation hold is gross negligence per se. The court found that not only can relevance and prejudice be presumed when a spoliating party is grossly negligent, but that an adverse inference instruction was the appropriate sanction in that case.

Departures from Zubulake

In 2012, in Chin v. Port Auth. of New York & New Jersey, 11 plaintiff employees sued the defendant employer for alleged civil rights violations. In discovery, the plaintiffs learned that the defendant failed to implement a document retention policy, which resulted in the spoliation of at least 32 folders used to make promotion decisions from August 1999 to August 2002. The plaintiffs also learned that the defendant failed to issue a litigation hold regarding the promotion folders at any point between 2001 and 2007, and thus argued that this inaction amounted to gross negligence. However, the court rejected the argument that a failure to institute a litigation hold automatically constitutes gross negligence per se, contrary to the rule of Zubulake.

Instead, the court ruled in favor of a case-by-case approach, in which failure to preserve documents is one of multiple factors in the determination of whether to issue sanctions. In the end, the court upheld the district court’s conclusion that an adverse inference instruction was inappropriate in light of the limited role of the destroyed folders in the promotion process, as well as the plaintiffs’ ample evidence regarding their relative qualifications when compared with the officers who were actually promoted.

What does it all mean?

Chin established that, depending on the facts, if a party acts reasonably and in good faith to preserve documents, it may be off the hook for severe sanctions. However, many commentators have argued that this does not change best practices—that parties should still issue a written litigation hold in accordance with Pension Committee.

For large organizations that touch many jurisdictions (many of which still follow Zubulake), corporate counsel should not disband their litigation hold systems just yet—in fact, they probably do not want ever to disband them. The litigation hold is an incredible powerful and defensible means to preservation. Large organizations often must track many custodians storing potentially relevant information on complicated IT systems. Corporations derive substantial benefits from being able to maintain holds, as well as being able to internally track multiple simultaneous preservation obligations.

It is worth noting, however, that not every case, or company, is the same. Should a tight-knit company of a few employees in a non-complex litigation have to issue a written legal hold in order to be safe from sanctions? As case law in 2013 develops, perhaps litigants in these types of cases will take a second look at the role of the litigation hold.

A breath of “reasonable” fresh air

On the topic of preservation, case law developments are not the only item on the horizon for 2013. The discovery subcommittee tasked with developing potential FRCP rule changes has been scrutinizing the preservation topic. In one possible version amending FRCP 37, the drafters adopted a factor-based approach to determining culpability. While one factor looks at the reasonableness of a party’s efforts to preserve the information, “including the use of a litigation hold,” another factor includes “the proportionality of the preservation efforts to any anticipated or ongoing litigation.” On Nov. 2, 2012, when the Advisory Committee voted to adopt the subcommittee’s proposal, a common opinion was that even this minor reference to the litigation hold should be omitted or reverted to the commentary to underscore the factor-based nature of draft Rule 37. As we continue down the road to Federal Rule amendments, it is becoming clear that the gold standard of Zubulake may be shifting in the coming year.

via Zubulake revisited: Shifting standards in e-discovery.

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Filed under attorneys, courts, discovery, District Court, electronic discovery, legal decision, legal research, sanctions, technology

DHS must release records under FOIA

On Nov. 27, the federal District of Columbia ruled on DHS’s withholding of records under FOIA exemptions.  The American Immigration Council submitted a FOIA request to DHS.  In response, DHS released two pages.  The American Immigration Council then filed the lawsuit.

In its complaint, the American Immigration Council stated, “CBP officers have prevented attorneys from accompanying their clients during inspections, limited the scope of representation, refused to accept supporting documentation proffered by attorneys, and actively dissuaded noncitizens from hiring attorneys.”

The Court ruled that DHS must submit a new affidavit to demonstrate the adequacy of USCIS’ search, and must release 2/3 of the records withheld.

The Court stated,

“After sitting on a fairly standard Freedom of Information Act request by plaintiff American Immigration Council for almost a year, defendant U.S. Citizenship and Immigration Services (a component of the Department of Homeland Security, the other defendant) produced a response riddled with errors.”

“After in camera review, the court concludes that two-thirds of the withheld records contested by the Council should have been largely or wholly released.”

“FOIA cases count on agencies to do their jobs with reasonable diligence. USCIS must do better.”

via Courthouse News Service.

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Waiver of Attorney-Client Privilege

This is an illustrative case as to why attorneys want to take precautions when producing discovery.  The case is Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 /0S.D. Ohio Aug. 28, 2012).

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

Here, Defendant did not stamp any documents as confidential.  Upon reviewing the documents at issue, the court held that those documents were covered under the attorney-client privilege.  However, the court found that the privilege had been waived.  The court highlighted the following facts:

  • Defendant’s lack of specificity as to who conducted the review and how the review was conducted.  The general assertion that multiple lawyers reviewed it was not enough.
  • Defendant failed to produce a privilege log during discovery;
  • 4.6% of the documents were inadvertently produced, which the Court found to be “relatively high.”

In sum, the Court opined:

After balancing the required factors, the Court concludes that Medex waived the attorney client privilege otherwise applicable to the 347 documents in the May 30 production.  To summarize, the Court finds that Medex did not take reasonable precautions to protect its privileged information, the number of documents disclosed is significant, no privilege log was provided at the time of disclosure, the contents of some of the documents may be relevant to the heart of the dispute, and Medex made insufficient attempts to mitigate its damage even after it learned of the disclosure.

via Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails : Electronic Discovery Law.

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ACLU loses FOIA CIA request

he ACLU won’t get information on unauthorized interrogation techniques allegedly used by CIA agent on suspects captured in the wake of the terrorist attacks of Sept. 11, 2001, a federal judge ruled.  You can read the opinion here.

The group sued the federal agency for refusing to release the records under the Freedom of Information Act. According to the ruling, the records are composed of reports written by the CIA Office of the Inspector General “relating to the detention, interrogation, or treatment of individuals apprehended after Sept. 11, 2001, and held at detention facilities outside the United States.”

U.S. District Judge Amy Jackson dismissed the ACLU’s claims for all the records except for one, which the judge ordered to be remanded back to the CIA to determine if it holds information that has already been released.

The judge accepted the CIA’s argument that the records are protected by exemptions one and three of FOIA, which allow the government to withhold information sensitive to national security and protected by statute. In this case, the CIA cited the National Security Act as the statute protecting the records.

“The ACLU’s only argument is that interrogation techniques cannot be properly classified as intelligence sources or methods when they are ‘unauthorized,'” states Judge Jackson. “It provides scant support for this assertion, and there is nothing in statute or case law that requires courts to treat information about unauthorized interrogation techniques differently from information about authorized techniques.”After the ACLU’s initial complaint, the CIA released some records that were partially redacted, but withheld the 11 documents at issue in their entirety.

via Courthouse News Service.

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