e-Discovery Docket Sheet

In this action, the plaintiffs brought suit to enforce an arbitrator's award determining that damages to their yacht were the result of a lightning strike, and motioned the court to award a judgment of $36,000. The defendant's insurer counterclaimed, seeking to enforce part of the arbitrator's award, which concluded that damages were limited to $14,100. Both parties filed cross-motions for summary judgment, but each party failed to support its motions with admissible evidence as required under the Rules of Evidence. Specifically, both parties offered copies of e-mail as parol evidence that were attached as exhibits to the summary judgment motions and not authenticated properly. The magistrate judge dismissed both parties' summary judgment motions without prejudice to allow resubmission with proper evidentiary support. The magistrate observed that unauthenticated e-mails are a form of computer-generated evidence that pose evidentiary issues, and that the admissibility of electronically stored information ('ESI') as evidence is determined by 'a collection of evidence rules that present themselves like a series of hurdles to be cleared by the proponent of the evidence.' He found that there were 'five distinct but interrelated evidentiary issues that govern whether electronic evidence will be admitted into evidence.' The five issues may not apply to every exhibit, but the magistrate held that each must be considered. ESI, the magistrate ruled, must be 1) relevant, 2) authentic, 3) not hearsay or admissible hearsay, 4) the 'best evidence,' and 5) not unduly prejudicial before it can be found to be admissible evidence. Regarding the five issues, the magistrate found that the parties' e-mail exhibits were relevant to the suit but that both parties failed to authenticate the e-mail exhibits because they 'simply attached the exhibits' and the 'complete absence of authentication stripped the exhibits of any evidentiary value because the court could not consider them as evidentiary facts.' The magistrate also found that the parties failed to address the last three hurdles of admissibility. They did not resolve any potential hearsay issues that were likely to arise, nor did they comply with the original-writing requirement or demonstrate the absence of unfair prejudice. After explaining the legal standard for each step of ESI admissibility, the magistrate stated that 'it can be expected that electronic evidence will constitute much, if not most, of the evidence used in future motions practice or at trial, [and] counsel should know how to get it right on the first try.' Lorraine v. Markel Am. Ins. Co., 2007 WL 1300739 (D. Md. May 4, 2007).

Court Implements Maryland's
Suggested Protocol for ESI Discovery

In this class action suit, the plaintiffs alleged that the defendant engaged in employment discrimination because they are not females or minorities. Having addressed whether the plaintiffs had standing to represent a class, the court determined the time ripe for the parties to begin precertification discovery. The plaintiffs claimed that they were entitled to broad discovery of electronic documents, including e-mail, relating to all employees, in all positions, in every store the defendant owned. The defendant disagreed. The court held that the plaintiffs could not obtain discovery for every person the defendant employed, and limited the discovery to regional, district and national managers and officers. The court noted that although the precertification discovery was limited, it was still very broad and that the court was in 'no way condoning or encouraging broad, unduly burdensome, or irrelevant discovery requests.' The court instructed the parties to construct a Rule 26(f) discovery plan. Anticipating the potential conflicts of discovering electronically stored information ('ESI'), the court ordered the parties to follow the 'Suggested Protocol for Discovery of Electronically Stored Information' as set forth by the U.S. District Court for the District of Maryland. The court noted that although these guidelines provide a comprehensive list of ESI discovery issues, the guidelines are not meant to be inflexible. The court then also set an extensive list of issues that the parties were to address in their joint discovery plan. O'Bar v. Lowe's Home Centers, Inc., 2007 WL 1299180 (W.D.N.C. May 2, 2007).

In this case, the plaintiffs brought suit against the defendant for denying several conditional housing permits. The plaintiffs brought a motion to compel the defendant to comply with several discovery requests and produce all electronically stored information ('ESI'), including e-mail and instant messages, relating to any ex parte communications regarding the denial of the plaintiffs' permits. The defendant contended that all requested ESI was automatically deleted and overwritten by the defendant's archiving system on its disaster backup tapes. The plaintiffs disputed the defendant's contention and argued that even if the disputed ESI was deleted, the defendant still had a duty to preserve the potential evidence and argued that the defendant should be sanctioned for failing to preserve the data. The court found that the defendant fulfilled its discovery obligations and adequately explained the non-existence of any ESI requested by the plaintiff. The defendant provided several affidavits from witnesses stating that there was no ESI to produce to the plaintiffs. The court also found that the failure to preserve the e-mail evidence was reasonable because the duty to preserve the documents and the likelihood of litigation did not arise until well after the documents were overwritten on the backup tapes. The court used a cost-benefit balancing test called the 'marginal utility test' to find that the production of the requested ESI would be unduly burdensome and costly because the 'likelihood of retrieving these electronic communications is low and the cost high.' Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007).

In this copyright-infringement suit, the plaintiff sought to compel the defendant to produce all copies of any video published on the defendant's Web site in electronic form. The defendant company operated a Web site that enabled the sharing of user-provided video content over the Internet. The plaintiff claimed that some of its videos were shared over the defendant's Web site without the plaintiff's authorization. The defendant argued that the request to produce all videos on its Web site was overbroad and likely to lead to the discovery of irrelevant third-party videos. The plaintiff argued that its videos can be identified only by examining all videos contained on the Web site. The court held that since information related to the plaintiff's works was indisputably relevant and because there was no other way for the plaintiff's works to be identified except through a review of all material published on the defendant's Web site, the defendant had to produce all electronic video that was once published on its Web site. The defendant argued that the costs of production should be shifted to the plaintiff, but the court undertook a Zubulake cost-shifting analysis and determined that the defendant did not provide any information on how such information was 'inaccessible,' much less any information necessary for the court to decide whether it would be appropriate to shift all production costs to the plaintiff. The court did, however, encourage the parties to come to an agreement as to the most efficient means of production, and the plaintiff noted that it was willing to provide high-capacity storage devices for the production to reduce costs. IO Group, Inc. v. Veoh Networks, Inc., 2007 WL 1113800 (N.D. Cal. Apr. 13, 2007).

Magistrate Outlines e-Evidence Admissibility Guidelines