Category: E-Discovery: Legal Decisions and Court Rules
Earlier this month, the NY Supreme and County courts addressed the topic of electronic discovery at the preliminary conference. The Court issued a Notice amending Section 202.12(b) of the Uniform Rules as well as Rule 1(b) of section 202.70(g) and requiring that in any case “reasonably likely to include electronic discovery” counsel must come to court “sufficiently versed in matters relating to their clients’ technological systems to discuss competently all issues relating to electronic discovery” and may bring a client representative or outside expert to assist in such discussion.
The decision in Mt. Hawley Insurance Company v. Felman Production, Inc. demonstrates the importance of a court-approved stipulation regarding the production of electronically stored information (“ESI”). The court in Mt. Hawley found that the plaintiff had waived the attorney-client privilege and work product doctrine for certain documents because counsel had failed to take “reasonable precautions” to ensure that such otherwise privileged documents were not inadvertently disclosed. Such precautions should have included, for example, sampling its production and not delaying to recover privileged documents after their production was known. Importantly, the parties had not agreed to a non-waiver provision when negotiating the production of ESI, as permitted by Fed. R. Evid. 502 (“Rule 502”). Magistrate Judge Stanley’s decision ultimately was affirmed by Judge Robert C. Chambers in Felman Productions, Inc. v. Industrial Risk Insurers.
In Victor Stanley, Inc. v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010), Magistrate Judge Paul Grimm sanctioned Defendants CPI and Mark Pappas, its president – and threatened to imprison Pappas – for the willful destruction of evidence and violation of his discovery orders. The Court’s lengthy decision gives a comprehensive analysis of preservation and spoliation issues across the federal circuits that will benefit every practitioner and corporate litigant.
