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A discussion of current hot topics, ethical and pr

concerns, and important judicial decisions from th

Michael R. Arkfeld, Esq., Arkfeld & Associates

Scott J. Etish, Esq., Associate, Gibbons E-Discovery Task Fo

Honorable John J. Hughes (Retired)

Moderated by: Mark S. Sidoti, Esq., Director & Chair, Gibbons E-D

The E-Discovery Landscape: 2

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Agenda

Outside and inside counsel must monitor complian

Obtaining ESI from foreign companies

Cooperation among the parties

Social media discovery

Searches and inadvertently disclosed privilege do

Legal hold and sanctions

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Outside and Inside Counsel Must

Monitor Compliance

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Cartel Asset Mgm t. v. Ocwen Fin. Corp .,

WL 502721 (D.Colo. Feb. 8, 2010)Defendant filed motion for a

protective order.

Argued that producing information

would affect profitability and clientservice.

Court took shots at parties failures

to work together; extolled benefits

of Cooperation Proclamation

civil litigation has become too

expensive and protracted to permitsuperficial compliance with the

meet and confer requirements

HELD:

Burden required for a protective order cannot be met with bald gener

Assertion that discovery would impact profitability and client service w

equivalent of an unsubstantiated claim that the sky is falling,

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EEOC v. Simply Storage Mgmt., LLC, No. 09-0

(S.D. Ind. May 11, 2010) Discovery of SociaTwo employees sexual harassment

claims.

Simply Storage sought information

from the claimants social networkingpages on Facebook and MySpace.

EEOC objected to the discovery, but

Simply Storage claimed that

discovery was proper because the

claimants put their emotional healthat issue.

HELD:

(1) SNS content is not shielded from discovery simply becaus

private

(2) SNS content must be produced when relevant to claim or def

(3) Reasonable to expect emotional or mental injury to manif

SNS content

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Electronic Privacy and the Fourth AmendCity of On tario, Califo rnia, v. Quon, 130 S.Ct. 2619

(June 17, 2010)

Suit by Police Officer against City employer forviolation of 4thAmendment rights by obtaining andreviewing personal text messages on work pager.

Officer consistently went over monthly characterallotment. City obtained transcript of textmessages from provider to see if overage wasbusiness related.

Many messages were personal, and sexually explicit. Officer wasdisciplined and filed suit against City.

9th Circuit held search unreasonable because less intrusivealternatives existed.

Supreme Court: Reversed. Search was reasonable because itwas (1) motivated by a legitimate work-related purpose and (2) no

excessive in scope.

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ESI in ArbitrationJAMS recently instituted electronic

discovery protocols for arbitration.

Protocol includes:

(1) production from sources used inthe ordinary course of business;

(2) production made with generally

available technology in a searchable

format which is usable by the party

receiving the e-documents andconvenient and economical for the

producing party (no metadata without

a compelling showing); and

(3) discretion of arbitrator where

costs and burdens of e-discovery are

disproportionate to nature of dispute

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Litigation Hold & Sanctions

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Pens ion Comm ittee- ZubulakeR2010 WL 184312 (S.D.N.Y. Jan 11, 2010)

(J. Scheindlin)

Sanctions sought for spoliation and misleading

statements with regard to document preservation

Originally, 13 Plaintiffs failed to issue written lit hold

when preservation duty arose in 2003. Eventually

Seven Plaintiffs issued written holds. Six did not.

HELD:After Zubulake Opinions in Oct. 2003 and Jul. 2004, theissue a written litigation hold constitutes gross negligence beca

is likely to result in the destruction of relevant information.

Failure to collect records from key players constitutes gross neg

to collect records from non-key employees likely constitutes neg

Adverse inference sanction for grossly negligent Plaintiffs; monFAILURE TO TAKE ALL APPROPRIATE MEASURES TO PR

IS NEGLIGENT

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Sanctions for Blatant E-Discovery V

Victo r Stan ley, Inc. v. Creative Pipe, Inc., 2010

U.S. Dist. LEXIS 93644 (D. Md. Sept. 9, 2010)

Many discovery failures, including:

- Intentional deletion of relevant ESI- Misrepresentations to counsel and court re: same.- Failure to implement litigation hold and failure to preserve

e-mails and hard drive.

P moved to for default judgment and monetary

sanctions.HELD: Ds President engaged in willful, bad faith conduct.Relevance of deleted information presumed. D did not objectto default judgment on Ps main claim.

Default judgment granted.

Monetary sanctions granted as well, including fees and costsassociated with all discovery occasioned by Ds spoliation.

Ds President be imprisoned for up to 2 years unless and untilPs fees and costs are paid.

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