Rule 26(b)(2)(c)’s proportionality standard triggers protective order

High Voltage Beverages LLC v. The Coca-Cola Company, 2009 WL 2915026 (W.D.N.C. Sept. 8, 2009) [Link to decision via Google Scholar]

Several of our prior blog posts [e.g., here and here] have addressed how Rule 26’s proportionality principles can be used to control a party’s ediscovery costs. As we explained in one of those posts, because Rule 26(b)(2)(c) applies to all discovery requests, its proportionality standard potentially can be applied even to sources of electronic information that are reasonably accessible, so long as the burden or expense of the proposed discovery outweighs its likely benefit. And with the ABA reporting “Electronic discovery should be proportionate to [the] controversy,” we thought today would be a good time to post about a decision that applied Rule 26’s proportionality standard to a source of electronic information that was “reasonably accessible.” Addressing what it characterized as “a novel question,” the court in High Voltage Beverages granted the defendant’s request for a protective order under Rule to 26(b)(2)(c).

After the defendant produced 1.7 million pages of documents, plaintiff demanded that it search for alternative sources of documents relating to defendant’s investigation and selection of its VAULT mark. In response, defendant identified an additional 17 gigabytes (1.5 million pages) of documents from a senior executive which had been retained under litigation holds issued in unrelated lawsuits. Defendant did not object to producing that data, but because defendant believed it produced every document related to the clearance of its VAULT mark, defendant objected to incurring the cost of reviewing the documents. Defendant offered plaintiff the opportunity to key-word search the documents and plaintiff refused. In its request for a protective order, defendant explained that a de novo review of the 17 gigabytes of data would not result in the discovery of any documents that have not already been produced.

The court in High Voltage Beverages accepted the defendant’s representation that it had produced all documents in its possession concerning the VAULT mark and concluded the time and expense of reviewing the documents would be extraordinary. Thus, the court concluded that the burden and expense of the requested discovery outweighed its likely benefit and held the defendant did not have to review the data before producing it to the plaintiff. Therefore, the court denied plaintiff’s motion to compel and granted defendant’s motion for a Rule 26 protective order. It did require that defendant to again extend the opportunity to key-word search the documents prior to their production.

So the moral of the story is do not overlook Rule 26(b)(2)(c) cost-shifting arguments where appropriate. With the growing chorus that ediscovery costs are harming our civil justice system, courts are more likely to favorably consider Rule 26 cost-shifting arguments. Rule 26(b)(2)(c)’s proportionality standard can provide an effective tool to control your ediscovery costs.

Photo courtesy Flickr user Capt Kodak via this Creative Commons license.

The Good, The Bad And The Ugly (of an ediscovery decision)

Scalera v. Electrograph Systems, Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Today’s blog post is named after the 1967 epic spaghetti western starring Clint Eastwood. Wikipedia explains that the movie’s plot “centers around three gunslingers competing to find a fortune in buried confederate gold.” Intended by its director to be a “tongue-in-cheek satire on run-of-the-mill westerns,” Quintin Tarentino once called it “the best-directed film of all time.”

While that might be a bit of a stretch, The Good, The Bad and The Ugly aptly summarizes the court’s holding in Scalera v. Electrograph Systems. While you won’t find any confederate gold, bounty hunters or ghost towns in the decision, there are a number of important points that can be gleaned from the opinion. However, as with many ediscovery decisions, there are several bad, and at least one downright ugly finding entered by the court. Luckily, while the court concluded the company “unquestionably breached a duty to preserve emails,” the plaintiff failed to establish that any of the destroyed emails would have been favorable to her claim and, thus, the court denied plaintiff’s request for an adverse inference instruction. As a result, on several levels, Scalera is a decision that merits your attention.

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State court practitioners beware: sanctions can be entered against your clients for failing to preserve emails, even if your state has not adopted a set of ediscovery rules

Einstein v. 357 LLC, et. al. (N.Y. Supreme Court, October 21, 2009)

In Einstein, a trial judge in the Supreme Court of the State of New York recently entered sanctions against several defendants for their failure to implement a litigation hold which resulted in the loss of emails relating to the presale condition of a condominium unit purchased by the plaintiffs in Brooklyn, New York. The trial judge recognized that even though New York had not yet enacted any rules addressing electronic discovery, and that its Civil Practice Law Rules and common law decisions were silent on the need to institute a litigation hold, New York courts have turned to the Federal Rules of Civil Procedure and case law interpreting them for guidance in other contexts.

The crux of the problem in Einstein was the limited storage capacity of the company’s email server. Each of the company’s brokers were allocated 200 megabytes of space, and once that limit was reached, a broker could not send or receive emails until that space was cleared for more email traffic. As a result, brokers had to clear old emails from the system in the ordinary course of their business. Unfortunately, a litigation hold was never instituted, and as a result, emails (several of which the plaintiff’s produced to the defendants) were not preserved. While emails were forwarded through a central server, the company’s email system was configured in such a way that once an email was deleted by an individual user from the user’s inbox, it was also deleted on the central server. While daily, weekly and monthly backup tapes were made of the email server, the daily and weekly backups were periodically reused. Thus, if emails sent or received during a particular month were also deleted during that month, the monthly backup would not capture those deleted emails.

The court concluded the defendants’ counsel and the company’s IT director failed to investigate the basic mechanics of the company’s email system and its retention practices until 11 months after plaintiffs first served their document demands upon the defendants. The court further concluded that defendants were aware of the fact that the contents of their emails would be relevant to the litigation and recalled that it had repeatedly warned defendants about the need to make a complete production of those emails. Accordingly, the court ruled that the defendants’ failure to take any steps “to implement a litigation hold, relying instead on backup tapes that a reasonable investigation would have revealed failed to capture relevant emails deleted manually by individual users,” constituted gross negligence, and warranted a finding of spoliation.

Therefore, the court imposed sanctions in the form of an adverse inference instruction relating to the missing emails, and awarded attorneys’ fees as well as expert costs associated with the review of the defendants’ hard drives.

While admittedly, a trial court decision lacks any precedential value, Einstein amply demonstrates that parties who are sued in state court, even in those states which have not enacted their own set of ediscovery rules, are not immune from ediscovery sanctions. One of our recent posts identified those states which had adopted their own set of ediscovery rules. Outside counsel would be wise to advise their clients of the need to impose a litigation hold in every case in which they are retained, even state-court proceedings, and seek to preserve ESI in state-court litigation. Counsel also would be wise to investigate the client’s email and information systems as well as its paper and electronic retention/destruction policies. Companies and their counsel can no longer safely assume that because a particular state has not enacted its own set of ediscovery rules that the client has no obligation to preserve and produce relevant electronically stored information.

Photo courtesy Flickr user Mike Licht under this Creative Commons license.

View the opinion below or by clicking here.

Einstein_v_357

Avoiding ethical pitfalls of communicating with clients via email

Leor Exploration & Production, LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)

The twentieth century Spanish philosopher and poet George Santayana once wrote: “Those who cannot learn from history are doomed to repeat it.” The Leor decision proves that philosophy is especially true when it comes to the realm of ediscovery. Leor is another example of a growing body of caselaw addressing whether emails sent or received by an employee through his employer’s email server are protected by attorney-client privilege. In a prior blog post we discussed several decisions that have addressed this issue and attempted to reconcile their holdings.

Guma Aguiar was the CEO and Vice Chairman of Leor Exploration & Production LLC (“Leor”). He retained a “trusts and estates attorney” to document his interests in certain entities. Subsequently, that attorney sent an email to Aguiar’s personal advisor and agent, Garrett Smith, who also happened to be the Vice President and In-House General Counsel of Leor, which memorialized a conversation involving the three of them. The email was sent to Mr. Smith’s work email address at Leor. After a series of lawsuits erupted between Aguiar, his uncle and related entities involved in oil and gas exploration, the attorney’s email surfaced in discovery and the issue presented to the court was whether it was protected by the attorney-client privilege.

Leor held that the attorney’s email to his client’s personal advisor and agent was not privileged because the client lacked a reasonable expectation of privacy in emails transmitted through his employer’s (the company’s) email server. In reaching that conclusion, the court identified four factors that should be considered in determining whether an employee has an expectation of privacy in email communications:

• Does the corporation maintain a policy banning personal or objectionable use;
• Does the corporation monitor the use of the employee’s computer or e-mail;
• Do third parties have a right of access to the computer or e-mails; and
• Did the corporation notify the employee or was the employee aware of the use and monitoring policies?

Because each of the four factors were present, the court in Leor had little difficulty in concluding that plaintiff did not meet his burden of establishing the applicability of the attorney-client privilege. However, the privilege belongs to the client not the lawyer, and the decision fails to address how an attorney can waive the privilege belonging to the client without the client’s consent. When the client sends an email to his attorney with knowledge of the four factors noted above, one can argue the client impliedly waived any right to assert the privilege, but the converse is not necessarily true. However, the decision follows the approach taken in Scott v. Beth Israel, and lawyers must take care not to run afoul of the decision.

In our prior blog post addressing this issue, we discussed how some courts have ruled that email communications retained their privileged character when they were encrypted or involved password protected web-based email notwithstanding the fact that they were sent or received via a company issued computer. While that post focused on the duties and responsibilities of a company’s attorney who receives or reviews employee emails, Leor highlights the responsibilities of any attorney communicating with his client via email.

Reasonable communication between an attorney and his or her client is necessary under Rule 1.4 of the Model Rules of Professional Conduct. Rule 1.6 of the Model Rules further requires that an attorney act competently to safeguard confidential information relating to the representation of a client against its inadvertent or unauthorized disclosure. Under Rule 1.6, a lawyer is obligated to take reasonable precautions to prevent information from coming into the hands of unintended recipients. That does not necessarily require that a lawyer use special security measures, such as encrypting emails, where the mode of communication affords a reasonable expectation of privacy. However, special circumstances can require that special precautions be taken.

While the decisions are not uniform in their holding, given the growing body of caselaw addressing the waiver of attorney-client privilege involving workplace email communications, an attorney should consider whether special precautions may be warranted in this scenario, especially if you practice in a jurisdiction where you would have reason to believe a court may find a waiver occurred. An attorney should consider addressing this issue at the outset of any representation with his client. Lawyers would be wise to follow the age-old adage: an ounce of prevention is worth a pound of cure. If the risk of privilege loss is to be avoided, then neither the attorney nor the client should communicate with one another through any email server or by any means in which they lack a reasonable expectation of privacy. While that does not mean that an attorney cannot communicate via email with his client, the attorney should endeavor to avoid emailing the client at the client’s place of business and should consider advising the client to not communicate with him through a company-issued computer, Blackberry or other communication device. Consider alternative methods of communication. While a client may consent to the use of a mode of communication that would be prohibited by Rule 1.6, that consent must be “informed.”

So before you send that next email to a client, stop and assess whether there are any privilege issues implicated by your communication. Don’t let convenience trump confidentiality. Where appropriate, clients should be advised of the risks of communication via company-issued computers or Blackberries in order to avoid a waiver of privilege as in Leor.

Photo courtesy Flickr user Michael Licht under this Creative Commons license.