The New Year has now dawned and with it, the certainty that 2012 will bring new developments to the world of eDiscovery. Last month, we spotlighted some eDiscovery trends for 2012 that we feel certain will occur in the near term. To understand how these trends will play out, it is instructive to review some of the top eDiscovery cases from 2011. These decisions provide a roadmap of best practices that the courts promulgated last year. They also spotlight the expectations that courts will likely have for organizations in 2012 and beyond.
Issuing a Timely and Comprehensive Litigation Hold
Case: E.I. du Pont de Nemours v. Kolon Industries (E.D. Va. July 21, 2011)
Summary: The court issued a stiff rebuke against defendant Kolon Industries for failing to issue a timely and proper litigation hold. That rebuke came in the form of an instruction to the jury that Kolon executives and employees destroyed key evidence after the company’s preservation duty was triggered. The jury responded by returning a stunning $919 million verdict for DuPont.
The spoliation at issue occurred when several Kolon executives and employees deleted thousands emails and other records relevant to DuPont’s trade secret claims. The court laid the blame for this destruction on the company’s attorneys and executives, reasoning they could have prevented the spoliation through an effective litigation hold process. At issue were three hold notices circulated to the key players and data sources. The notices were all deficient in some manner. They were either too limited in their distribution, ineffective since they were prepared in English for Korean-speaking employees, or too late to prevent or otherwise ameliorate the spoliation.
The Lessons for 2012: The DuPont case underscores the importance of issuing a timely and comprehensive litigation hold notice. As DuPont teaches, organizations should identify what key players and data sources may have relevant information. A comprehensive notice should then be prepared to communicate the precise hold instructions in an intelligible fashion. Finally, the hold should be circulated immediately to prevent data loss.
Organizations should also consider deploying the latest technologies to help effectuate this process. This includes an eDiscovery platform that enables automated legal hold acknowledgements. Such technology will allow custodians to be promptly and properly apprised of litigation and thereby retain information that might otherwise have been discarded.
Another Must-Read Case: Haraburda v. Arcelor Mittal U.S.A., Inc. (D. Ind. June 28, 2011)
Suspending Document Retention Policies
Case: Viramontes v. U.S. Bancorp (N.D. Ill. Jan. 27, 2011)
Summary: The defendant bank defeated a sanctions motion because it modified aspects of its email retention policy once it was aware litigation was reasonably foreseeable. The bank implemented a retention policy that kept emails for 90 days, after which the emails were overwritten and destroyed. The bank also promulgated a course of action whereby the retention policy would be promptly suspended on the occurrence of litigation or other triggering event. This way, the bank could establish the reasonableness of its policy in litigation. Because the bank followed that procedure in good faith, it was protected from court sanctions under the Federal Rules of Civil Procedure 37(e) “safe harbor.”
The Lesson for 2012: As Viramontes shows, an organization can be prepared for eDiscovery disputes by timely suspending aspects of its document retention policies. By modifying retention policies when so required, an organization can develop a defensible retention procedure and be protected from court sanctions under Rule 37(e).
Coupling those procedures with archiving software will only enhance an organization’s eDiscovery preparations. Effective archiving software will have a litigation hold mechanism, which enables an organization to suspend automated retention rules. This will better ensure that data subject to a preservation duty is actually retained.
Another Must-Read Case: Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011)
Managing the Document Collection Process
Case: Northington v. H & M International (N.D.Ill. Jan. 12, 2011)
Summary: The court issued an adverse inference jury instruction against a company that destroyed relevant emails and other data. The spoliation occurred in large part because legal and IT were not involved in the collection process. For example, counsel was not actively engaged in the critical steps of preservation, identification or collection of electronically stored information (ESI). Nor was IT brought into the picture until 15 months after the preservation duty was triggered. By that time, rank and file employees – some of whom were accused by the plaintiff of harassment – stepped into this vacuum and conducted the collection process without meaningful oversight. Predictably, key documents were never found and the court had little choice but to promise to inform the jury that the company destroyed evidence.
The Lesson for 2012: An organization does not have to suffer the same fate as the company in the Northington case. It can take charge of its data during litigation through cooperative governance between legal and IT. After issuing a timely and effective litigation hold, legal should typically involve IT in the collection process. Legal should rely on IT to help identify all data sources – servers, systems and custodians – that likely contain relevant information. IT will also be instrumental in preserving and collecting that data for subsequent review and analysis by legal. By working together in a top-down fashion, organizations can better ensure that their eDiscovery process is defensible and not fatally flawed.
Another Must-Read Case: Green v. Blitz U.S.A., Inc. (E.D. Tex. Mar. 1, 2011)
Using Proportionality to Dictate the Scope of Permissible Discovery
Case: DCG Systems v. Checkpoint Technologies (N.D. Ca. Nov. 2, 2011)
The court adopted the new Model Order on E-Discovery in Patent Cases recently promulgated by the U.S. Court of Appeals for the Federal Circuit. The model order incorporates principles of proportionality to reduce the production of email in patent litigation. In adopting the order, the court explained that email productions should be scaled back since email is infrequently introduced as evidence at trial. As a result, email production requests will be restricted to five search terms and may only span a defined set of five custodians. Furthermore, email discovery in DCG Systems will wait until after the parties complete discovery on the “core documentation” concerning the patent, the accused product and prior art.
The Lesson for 2012: Courts seem to be slowly moving toward a system that incorporates proportionality as the touchstone for eDiscovery. This is occurring beyond the field of patent litigation, as evidenced by other recent cases. Even the State of Utah has gotten in on the act, revising its version of Rule 26 to require that all discovery meet the standards of proportionality. While there are undoubtedly deviations from this trend (e.g., Pippins v. KPMG (S.D.N.Y. Oct. 7, 2011)), the clear lesson is that discovery should comply with the cost cutting mandate of Federal Rule 1.
Another Must-Read Case: Omni Laboratories Inc. v. Eden Energy Ltd  EWHC 2169 (TCC) (29 July 2011)
Leveraging eDiscovery Technologies for Search and Review
Case: Oracle America v. Google (N.D. Ca. Oct. 20, 2011)
The court ordered Google to produce an email that it previously withheld on attorney client privilege grounds. While the email’s focus on business negotiations vitiated Google’s claim of privilege, that claim was also undermined by Google’s production of eight earlier drafts of the email. The drafts were produced because they did not contain addressees or the heading “attorney client privilege,” which the sender later inserted into the final email draft. Because those details were absent from the earlier drafts, Google’s “electronic scanning mechanisms did not catch those drafts before production.”
The Lesson for 2012: Organizations need to leverage next generation, robust technology to support the document production process in discovery. Tools such as email analytical software, which can isolate drafts and offer to remove them from production, are needed to address complex production issues. Other technological capabilities, such as Near Duplicate Identification, can also help identify draft materials and marry them up with finals that have been marked as privileged. Last but not least, technology assisted review has the potential of enabling one lawyer to efficiently complete the work that previously took thousands of hours. Finding the budget and doing the research to obtain the right tools for the enterprise should be a priority for organizations in 2012.
Another Must-Read Case: J-M Manufacturing v. McDermott, Will & Emery (CA Super. Jun. 2, 2011)
ConclusionThere were any number of other significant cases from 2011 that could have made this list.