Electronic Evidence Newsletters

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Michele C.S. Lange, Esq., Legal Technologies Staff Attorney, Kroll Ontrack

In the United States, the first half of 2006 witnessed several noteworthy statutory and common law developments relating to electronic discovery, with both the legislature and the courts seeking to standardize electronic evidence practices.

Federal Rules of Evidence 502
This summer the Advisory Committee on Evidence Rules met to consider proposed Federal Rule of Evidence 502 – Attorney-Client Privilege and Work Product; Waiver By Disclosure . The proposed rule is designed to provide parties with predictable, uniform standards for determining the consequences of disclosing attorney-client privilege or work product doctrine information. In addition, Rule 502 addresses concerns about exorbitant review costs stemming from the fear disclosure of privileged or protected information will result in subject matter waiver of all protected information. In August 2006, a public comment period will begin, permitting litigators, judges, and legal scholars the opportunity to comment on the rule proposals. As early as May 2008, the United States Supreme Court is expected to approve a final draft of the rule and refer it to Congress. Congress will then review the final draft and enact the rule if it is found to be acceptable. A copy of the proposed rule is available at www.krollontrack.com/legalresources/draftrule.asp.

Noteworthy Cases
In recent months, U.S. courts have grappled with electronic discovery issues surrounding the identification, production and preservation of relevant electronically stored information. Three noteworthy cases include the following:

1. Court Charges Lawyer with an Obligation to Locate All Sources of Evidence . In Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006), the court found the failure of the defendant’s lawyer to locate and timely produce electronic evidence on their client’s server constituted gross negligence. The court chided counsel for relying on the defendants’ assertions that there were no computers or electronic sources to search without conducting an independent inquiry. The court awarded monetary sanctions, ordering the defendants and their counsel to bear the costs equally. This case underscores the obligation of U.S. lawyers to take reasonable efforts to understand their client’s electronic systems and identify all potential sources of relevant information firsthand.

1. Court Requires Native Electronic Evidence Production . In Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006), after the defendants had provided the plaintiffs with TIFF (tagged image file format) images in response to their discovery requests, the court required the defendant instead produce the requested documents in native format. The court noted that the TIFF production did “not contain all of the relevant, non-privileged information,” lacked metadata, e-mail attachments and recipients, and was not produced in the “usual course of business.”

1. Default Judgment Granted for Deleting, Altering and Accessing Electronic Data Despite Litigation Hold. In Krumwiede v. Brighton Assocs., L.L.C., 2006 WL 1308629 (N.D. Ill. May 8, 2006), the court issued a default judgment against the plaintiff, finding the plaintiff had continued to delete, modify and access thousands of files despite knowing the laptop was subject to a litigation hold. The court declared, “[this] will send a strong message to other litigants, who scheme to abuse the discovery process and lie to the Court, that this behavior will not be tolerated and will be severely sanctioned.”

Conclusion
In the coming year, American courts and legislators will continue to address the complexities associated with gathering, producing, and preserving electronic documents for litigation. Familiarization with these statutory revisions and cases is essential for U.K. civil litigators, especially for those practicing in cross-border litigation. Additionally, as the majority of information is now created, stored and transferred in electronic form, legal professionals are increasingly recognising the importance of electronic disclosure. Lawyers can anticipate the U.K. legal system will look to the U.S. for guidance in addressing the new challenges posed by electronic discovery.

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