Los Angeles E-Discovery Lawyer & Attorney : McBride Law Firm : Electronic Evidence: Santa Monica, California

2.  This obligation extends to all types of documents, including e-mail.  If any party has specific concerns about their preservation obligations, and the related burden and expense, that party may move the Court for a reprieve from those obligations.

3.  The fact that a party had a document retention policy in place prior to filing or notice of suit that permitted destruction is not, without more, a justification for destruction of relevant documents.

4.  Neither party need deviate from the practices it normally exercises when not in anticipation of litigation with regard to the preservation of (i) audio or video information; (ii) deleted files; or (iii) electronic media utilized primarily for back-up or disaster recovery purposes (e.g., recycling of backup tapes is permitted).

5.  To the extent a party normally records audio and/or video of customer calls for quality assurance or training and ceases to make such recordings during the pendency of this action, such party must maintain a sample of at least 24 hours of such calls.

 6.  Defendants shall make their production in searchable electronic plain-text format to the extent their documents are maintain in that way in the ordinary course of business; otherwise, defendants will produce native graphic files, image documents or hard copies depending on the manner in which such documents are kept in the ordinary course of business.

7.  Each party shall identify up to 15 employees or representatives ("custodians") most likely to have relevant e-mails in their files. 

8.  Following identification of the custodians, the parties shall meet and confer regarding production of emails and shall attempt to agree on the identity of electronic search terms to be run against the personal and network email files of the designated custodians. 

9.  Documents maintained in electronic form in the ordinary course of business or scanned into electronic form before the date of production shall be produced in electronic form. 

10.  Where reasonably feasible, such documents shall be produced in electronic format with TIFF images and load files (that indicate beginning and ending of each document).

11.  To the extent that materials are maintained in the ordinary course of business in electronic plain-text (e.g., ASCII text) files or otherwise existing in a format not reasonably readable and usable other than their native format, such documents shall be produced in their native format.  The producing party shall identify any associated software that is necessary to read and search materials produced in native format and shall, if necessary, assist the receiving party in obtaining such software.  It shall be the responsibility of the receiving party to pay for any necessary software licenses.

 Discussion:

Judge Mumm initially addresses the document preservation obligation, requiring that all relevant documents be kept from and after the date of filing suit or receipt of notice to file suit, whichever came first.  This is the first step to proper e-discovery compliance, and must be addressed immediately by counsel upon receipt of any new case. 

As Judge Mumm pointed out (No. 4, above)  it is acceptable practice to continue document destruction policies with regard to information not relevant to litigation, including deletion of files and recycling of backup tapes.  

But it is imperative that counsel segregate relevant documents immediately upon notice of litigation (or potential litigation) and cease document destruction and backup tape recycling as to those documents.

Judge Mumm also required counsel to exchange search terms to be run against the documents of potential custodians as a means of identifying relevant documents.  This is a very important step in e-discovery. 

Search terms provided to opposing counsel need to carefully track all issues in the case identified in the base pleadings.  It takes considerable creativity and thought to develop the right list of search terms--a list that is both tied to the allegations of the case and is broad enough to capture documents using words other than those used by counsel in the complaint. 

Remember that document requests in federal court can no longer seek information "reasonably calculated to lead to discoverable evidence."  Changes to FRCP Rule 26 Advisory Committee Notes in 2000 narrowed the scope of allowable discovery to information "relevant to the claims or defenses of any party." 

As Judge Mumm pointed out in resolving a related motion to compel entered prior to the case management order:

The Advisory Committee Notes to the 2000 change in language in Rule 26..."signals to the parties that they have no entitlement to discovery to develop new claims or defenses that are not already identified in the pleadings."   192 F.R.D. 340, 389 (2000).  Hence, the question is whether [the claims] are sufficiently "identified in the pleadings" to permit discovery related thereto. 

 

Because of this narrowing of "relevancy" under FRCP Rule 26, significant attention must now be given to drafting discovery, and to exchanging search terms with opposing counsel. 

Judge Mumm also addressed document production format in some detail.  The preferred method of production seemed to be TIFF images (and load files) together with searchable text, insofar as the documents (converted to TIFF) were originally maintained in word searchable form. 

This is consistent with most lawyers' desire to produce in TIFF images with Bates numbering, with a load file for Concordance or Summation.  However, this method of production eliminates metadata.  Nothing in Judge Mumm's order addressed production of metadata.

This production order implies, but does not explicitly state, that producing parties must provide OCR with TIFF images for documents maintained in word-searchable form.  In reality, most receiving parties would rather do their own OCR process to assure the highest quality of OCR, rather than risk receiving a lower quality OCR from an opponent.

This case is in its early stages, and promises more opportunities to test Judge Mumm in electronic discovery issues.  A special discovery master has also been appointed in the case.   We will track future rulings in the case as they become available.

1.  In response to almost each and every request for production, defendants objected on, inter alia, the following grounds: "seeks confidential proprietary information prior to issuance of a protective order" ; "constitutes an unwarranted invasion of [third party''s] constitutional, statutory and common-law right of privacy in confidentiality.

2.  Defendant admits withholding documents from plaintiff based upon its claim of confidential proprietary information and has refused to turn over these documents without a protective order.

3.  Here, defendant has failed to provide any declarations or other evidence to support its claim that the documents requested are confidential information and that their "disclosure would be harmful to the party's interest in the property."

 4.  Moreover, if defendant truly believes it has "confidential proprietary information" it should have entered into a stipulated protective order with plaintiff or filed a motion for protective order before the date by which it was to respond to the requests.

5.  In addition, defendant also object to nearly all production requests as: "overly broad, unduly burdensome, and seeks information not reasonably calculated to lead to the discovery of admissible evidence." 

6.  Although defendant has made a general or boilerplate relevancy objection to plaintiff's document request, defendant has not provided any explanation at all why these requests are not relevant.

7.  In light of the declarations submitted by defendant which establish that much of the information plaintiff seeks is available in electronic format, it appears to the Court that counsel for the parties, and particularly plaintiff, must address electronic discovery.

Plaintiffs in this case were represented by Initiative Legal Group (Century City); defendants were represented by Akin Gump (Los Angeles office).

Discussion:

In addition to the discussion about confidential information, this case also highlights the risk of relying on "boilerplate" objections.  We all use boilerplate objections, often without much thought or analysis. 

This case reminds that even boilerplate objections need to be defensible, and should be more carefully analyzed at the time discovery is answered.

The question of "undue burden" is also highlighted in this case.  Defendants' declarations asserted that response to certain of the plaintiff's requests would consume 3,900 hours of work--the equivalent of two full work years.  Based on this Judge Chapman found an undue burden.  However, defendant had offered to provide sampling of this data; an offer that plaintiff refused. 

Judge Chapman ruled that because the information was largely in electronic format, sampling was an appropriate interim step. 

Not discussed in the opinion, however, was the apparent fact that the estimate of 3,900 hours of work for full production was based on manual printing and review of documents--a questionable approach to review of information contained in electronic format. 

It is a good idea for requesting parties to probe the underling assumptions of "undue burden" raised in response to a document request.  Make sure that declarations asserting the burden of review are based on electronic review procedures, not manual review procedures. 

The decision cites heavily to the well-known Zubulake IV decision from the Southern District of New York. While the decision on this motion occurred prior to adoption of FRCP ESI rules on Dec. 1, 2006, the preservation obligation does not directly flow from the new FRCP rules, but arises as a matter of state and common law.

Judge Fischer issued a stern admonition that a cavalier approach to preservation obligations “will not be countenanced.” Judge Fischer also instructed that litigation counsel’s duty does not end with issuing a “litigation hold,” but instead extends to overseeing compliance by the client and monitoring the party’s efforts to retain and produce relevant documents.

The ruling in this case is on the order of a “wake up call” to litigation practitioners. Courts do not tolerate ignorance of electronic discovery or a cavalier approach to document preservation. Document preservation must begin at the moment the potential for litigation becomes known.

Existing preservation policies must be reviewed and new “litigation hold” policies put into place with respect to information that may be relevant and document custodians that may have relevant information. The counsel must monitor compliance with preservation orders throughout the life of the case. This is an entirely new set of obligations that have not traditionally been part of litigation.

We have reached the point where the vast majority of business deals and personal communications involve email. Nowadays, you can usually know what someone is thinking through access to his or her emails. Are these emails properly treated as party admissions at trial? 

Nowadays, most documents are stored in computers, not filing cabinets. Are you entitled to access those computer files in discovery? All California courts say “yes,” but endless battles are now being fought over the scope of access. 

Even before adoption of electronic discovery rules by the legislature, ad hoc practices are developing all around California by Superior court judges.   If you practice in Superior Court, you need to be aware of these trends.

How are FRCP e-discovery rules being applied in the Central District of California?

Discovery rules under FRCP were amended effective December 1, 2006 to formally implement electronic discovery in federal courts.  There are currently so many e-discovery cases in US district courts across the country that it is difficult to effectively track all of them. Therefore, this blog focuses on the cases of greatest practical value to Los Angeles-area practitioners—those decisions by CACD judges, decisions from the Ninth Circuit and decisions from other California US District Court judges and magistrate judges.

So far, in some cases main-stream decisions have been followed.  For example, Judge Dale Fischer followed the landmark case of Zubulake v. UBS Warburg  IV in her ruling in Housing Rights Center v. Sterling, defining the "litigation hold" obligation.  But in another case, Columbia Pictures v. Bunnell, new ground was developed by a CACD judge in e-discovery law, when Magistrate Judge Jacqueline Chooljian defined computer "random access memory" (RAM) as “electronically stored information" (ESI) under FRCP 34(a). 

This blog will closely follow all CACD decisions to help identify trends and practice tips for particular judges in the Central District.

How can I make practical use of this blog?

This blog addresses the core problems of electronic discovery, topic by topic, as defined by statutes, rules and case law in California state courts and in federal courts. Where pertinent, differences between California and federal law and practices are addressed and discussed. 

Where available, analysis of rulings by specific judges currently on the bench in US California Central District Court or Los Angeles Superior Court are discussed. Hopefully this will provide useful information to practitioners to better understand and deal with new and evolving electronic discovery rules, arguments and practices.

If you have cases involving electronic discovery in the Central District Court or Los Angeles Superior Court and would like to share your insights and observations, please post!