Maine Evidence and Electronic Discovery

The Lighter Side of Electronic Discovery

I recently came across a site called "Case in Point," that seems to be a fairly recent blog (started in October 2008) that runs a weekly cartoon series that puts a humorous spin on electronic discovery.  It's worth checking out if you have a minute.

Proposed Changes to Federal Rule of Civil Procedure 56 for Summary Judgment

As a follow-up to my posting of yesterday, the Advisory Committee on Civil Rules of the Judicial Conference of the United States is seeking comment on a proposed rewriting of Rule 56 governing summary judgment procedures.

The amendments to Rule 56 (starting at page 34 in the link) are based in large part on local rules that various district courts around the country have issued over recent years designed to provide additional structure and clarity for the procedures to be used in filing summary judgment motions.  Because the proposed changes amount to a complete rewriting of Rule 56, I set forth here the proposed new rule in its entirety.

Rule 56. Summary Judgment

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment on all or part of a claim or defense. The court should grant summary judgment if there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

(b) Time to File a Motion, Response, and Reply. These times apply unless a different time is set by local rule or the court orders otherwise in the case:

(1) a party may file a motion for summary judgment at any time until 30 days after the close of all discovery;

(2) a party opposing the motion must file a response within 21 days after the motion is served or that party's responsive pleading is due, whichever is later; and

(3) any reply by the movant must be filed within 14 days after the response is served.

(c) Procedures.

(1) Case-Specific Procedure. The procedures in this subdivision (c) apply unless the court orders otherwise in the case.

(2) Motion, Statement, and Brief, Response and Brief; Reply and Brief.

(A) Motion, Statement, and Brief. The movant must simultaneously file:

(i) a motion that identifies each claim or defense - or the part of each claim or defense- on which summary judgment is sought;

(ii) a separate statement that concisely identifies in separately numbered paragraphs only those material facts that cannot be genuinely disputed and entitle the movant to summary judgment; and

(iii) a brief of its contentions on the law or facts.

(B) Response and Brief by the Opposing Party.  A party opposing summary judgment:

(i) must file a response that, in correspondingly numbered paragraphs, accepts or disputes - or accepts in part and disputes in part - each fact in the movant's statement;

(ii) may in the response concisely identify in separately numbered paragraphs additional material facts that preclude summary judgment; and

(iii) must file a brief of its contentions on the law or facts.

(C) Reply and Brief. The movant:

(i) must file, in the form required by Rule 56(c)(2)(B)(i), a reply to any additional facts stated by the nonmovant; and

(ii) may file a reply brief.

(3) Accept or Dispute Generally or for Purposes of Motion Only. A party may accept or dispute a fact either generally or for purposes of the motion only.

(4) Citing Support for Statements or Disputes of Fact; Materials Not Cited.

(A) Supporting Fact Positions. A statement that a fact cannot be genuinely disputed or is genuinely disputed must be supported by:

(i) citation to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(ii) a showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(B) Materials Not Cited. The court need consider only materials called to its attention under Rule 56(c)(4)(A), but it may consider other materials in the record:

(i) to establish a genuine dispute of fact; or

(ii) to grant summary judgment if it gives notice under Rule 56(f).

(5) Assertion that Fact is Not Supported by Admissible Evidence. A response or reply to a statement of fact may state that the material cited to support or dispute the fact is not admissible in evidence.

(6) Affidavits or Declarations. An affidavit or declaration used to support a motion, response, or reply must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery; or

(3) issue any other appropriate order.

(e) Failure to Respond or Properly Respond. If a response or reply does not comply with Rule 56(c) – or if there is no response or reply - the court may:

(1) afford an opportunity to properly respond or reply;

(2) consider a fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it; or

(4) issue any other appropriate order.

(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond, the court may:

(1) grant summary judgment for a nonmovant;

(2) grant or deny the motion on grounds not raised by the motion, response, or reply; or

(3) consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute.

(g) Partial Grant of the Motion. If the court does not grant all the relief requested by the motion, it may enter an order stating any material fact - including an item of damages or other relief - that is not genuinely in dispute and treating the fact as established in the case.

(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or declaration under this rule is submitted in bad faith or solely for delay, the court - after notice and a reasonable time to respond – may order the submitting party to pay the other party the reasonable expenses, including attorney's fees, it incurred as a result. An offending party or attorney may also be held in contempt.

The new rule would accomplish several procedural changes.  First, it would change the current rule that says that summary judgment motions cannot be filed until at least 20 days after the commencement of the action to provide that summary judgment motions can be filed at any time within 30 days after the close of all discovery.  The new rule also would set a 21-day deadline for a response, and a 14-day deadline for a reply.  Those deadlines effectively would override response deadlines provided in local rules, and would provide for the right of a reply in all instances (which does not currently exist in some districts, like Massachusetts).

Second, the new rule would adopt the procedure that already exists in most districts, of requiring a separate statement of material facts, contained in numbered paragraphs with citations to record evidence that supports each contention.  That would not appear to mark a change here in Maine, where Local Rule 56 already requires such a statement.  The rule would require the moving party to reply to any new factual assertions contained in the opposing party’s response to the statement of material facts.  That, of  course, makes sense, and is provided for under Maine’s current Local Rule 56; but that would mark a change from Massachusetts’ current Local Rule 56.1, which oddly does not provide any mechanism for a moving party to reply to the respondent’s assertion of new facts in response to a summary judgment motion.

The proposed rule also would permit a party responding to its opponent’s statement of facts to argue that “the material cited to support or dispute the fact is not admissible in evidence,” which would seem to streamline the process of raising evidentiary objections to record citations and do away with the practice in some courts of requiring (or permitting) parties to file separate motions to strike portions of their opponent’s statements of facts.  As the advisory committee observed, “There is no need to make a separate motion to strike. If the case goes to trial, failure to challenge admissibility at the summary-judgment stage does not forfeit the right to challenge admissibility at trial.”

Interestingly, the advisory committee’s notes suggest that the “court may find it useful, particularly in complex cases, to set a limit on the number of facts the statement can identify.”  I suppose the theory would be to preclude parties in some cases from filing a 100-page statement of materials facts, with hundreds of separately numbered paragraphs, in order to better focus the court on the facts that truly are both undisputed and central to the issues presented in the motion.  That seems to be the crux of what the advisory committee is concerned about, noting that in “some cases the statements and responses have expanded to identification of hundreds of facts, elaborated in hundreds of pages and supported by unwieldy volumes of materials. This practice is self-defeating. To be effective, the motion should focus on a small number of truly dispositive facts.”

The proposed rule also would provide an escape hatch that typically is not found in local rules adopted by district courts.  If a party fails properly to respond to a statement of material facts with appropriate record citations of its own, the proposed rule would permit – but not require – a court to remind the party of its obligations under the rules and “afford an opportunity to properly respond or reply” before deeming the facts admitted.  That form of discretion is not currently recognized in Maine’s Local Rule 56(f), which provides that facts supported by record citations “shall be deemed admitted unless properly controverted.”

This proposed rule would completely rewrite Rule 56.  Here in Maine, it does not appear that the changes would result in a drastic difference in summary judgment procedure compared to what is already required by local rule.  For other districts, like Massachusetts, the proposed rule would provide helpful clarity to the summary judgment process that is lacking in the local rules.

Proposed Amendments to Federal Rule of Civil Procedure 26 Regarding Disclosure of Expert Communications and Draft Reports

The Advisory Committee on Civil Rules of the Judicial Conference of the United States is seeking comment on proposed changes to Rules 26 and 56.  This posting focuses on the proposed changes to Rule 26.  (We’ll address the proposed changes to Rule 56 separately.)

The proposed changes to Rule 26 would address the disclosures required of expert witnesses, and essentially would protect many, but not all, communications between attorneys and their expert witnesses.  The changes also would require experts who traditionally have not been required to provide expert reports, like witnesses who often present both fact and expert testimony based on their own personal knowledge (such as treating physicians and a party’s employees who do not regularly provide expert testimony), to disclose in “summary” format additional information about their anticipated testimony in less than a full-blown expert report.

If the changes are adopted, Rule 26 would have a new section (a)(2)(C) that would read:

(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, the Rule 26(a)(2)(A) disclosure must state:

(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and

(ii) a summary of the facts and opinions to which the witness is expected to testify.

The proposed amendments also would include new subsections (b)(4)(B) and (C) that would provide:

(B) Trial Preparation Protection for Draft Reports or Disclosures. Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form of the draft.

(C) Trial Preparation Protection for Communications Between Party's Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party's attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications:

(i) Relate to compensation for the expert's study or testimony;

(ii) Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed, or

(iii) Identify assumptions that the party's attorney provided and that the expert relied upon in forming the opinions to be expressed.

As the advisory committee note indicates, the additional subsection (a)(2)(C) is not intended to impose the same onerous expert reporting obligations on experts otherwise excluded from the typical report requirements.  “It is considerably less extensive than the report required by Rule 26(a)(2)(B). Courts must take care against requiring undue detail, keeping in mind that these witnesses have not been specially retained and may not be as responsive to counsel as those who have.” 

Essentially the new subsections of (b)(4) dealing with expert communications would “provide work-product protection against discovery regarding draft expert disclosures or reports and - with three specific exceptions - communications between expert witnesses and counsel.”  The advisory committee perceives the current rule as hampering the free flow of information between counsel and experts, often creating artificial barriers  designed to avoid having to disclose things to the other side that really benefit neither side in litigation anyhow.

The Committee has been told repeatedly that routine discovery into attorney-expert communications and draft reports has had undesirable effects. Costs have risen. Attorneys may employ two sets of experts - one for purposes of consultation and another to testify at trial - because disclosure of their collaborative interactions with expert consultants would reveal their most sensitive and confidential case analyses, often called "core" or "opinion" work product. The cost of retaining a second set of experts gives an advantage to those litigants who can afford this practice over those who cannot. At the same time, attorneys often feel compelled to adopt an excessively guarded attitude toward their interaction with testifying experts that impedes effective communication. Experts might adopt strategies that protect against discovery but also interfere with their effective work, such as not taking any notes, never preparing draft reports, or using sophisticated software to scrub their computers' memories of all remnants of such drafts. In some instances, outstanding potential expert witnesses may simply refuse to be involved because they would have to operate under these constraints.

The drafters of the proposed amendment suggest a “pragmatic” approach in its application. 

Rules 26(b)(4)(B) and (C) do not impede discovery about the opinions to be offered by the expert or the development, foundation, or basis of those opinions. For example, the expert's testing of material involved in litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, inquiry about communications the expert had with anyone other than the party's counsel about the opinions expressed is unaffected by the rule. Counsel are also free to question expert witnesses about alternative analyses, testing methods, or approaches to the issues on which they are testifying, whether or not the expert considered them in forming the opinions expressed.

The protection for communications between the retained expert and "the party's attorney" should be applied in a realistic manner, and often would not be limited to communications with a single lawyer or a single law firm. For example, it may happen that a party is involved in a number of suits about a given product or service, and that a particular expert witness will testify on that party's behalf in several of the cases. In such a situation, a court should recognize that this protection applies to communications between the expert witness and the attorneys representing the party in any of those cases. Similarly, communications with in-house counsel for the party would often be regarded as protected even if the in-house attorney is not counsel of record in the action. Other situations may also justify a pragmatic application of the "party's attorney" concept.

And to the extent a lawyer and expert communicate concerning a matter that falls within the reach of one of the three exceptions to the work product protection, “the discovery authorized by the exceptions does not extend beyond those specific topics. Lawyer- expert communications may cover many topics and, even when the excepted topics are included among those involved in a given communication, the protection applies to all other aspects of the communication beyond the excepted topics.”

The recognition of work product protection for drafts of expert reports and related communications effectively would codify a practice that often occurs by agreement of the parties in many cases already.

The advisory committee is soliciting any comments on the proposed rule change through February 17, 2009.  Comments can be submitted by following the instructions in this link.

E-Discovery in Arbitrations Part 2

In a follow-up to my November 10, 2008 posting on the issue of e-discovery in arbitrations, the International Centre for Dispute Resolution (ICDR), the international arm of the American Arbitration Association (AAA), issued a set of Guidelines for Arbitrators Concerning Exchanges of Information, effective as of May 31, 2008.

The guidelines do not address electronic discovery in much detail, but do reinforce the AAA’s and ICDR’s position that they “are committed to the principle that commercial arbitration, and particularly international commercial arbitration, should provide a simpler, less expensive and more expeditious form of dispute resolution than resort to national courts.”

The guidelines note that “care must also be taken to prevent the importation of procedural measures and devices from different court systems … which are inconsistent with an alternative form of dispute resolution that is simpler, less expensive and more expeditious. One of the factors contributing to complexity, expense and delay in recent years has been the migration from court systems into arbitration of procedural devices that allow one party to a court proceeding access to information in the possession of the other, without full consideration of the differences between arbitration and litigation.”

With respect to electronic documents in particular, the guidelines state:

When documents to be exchanged are maintained in electronic form, the party in possession of such documents may make them available in the form (which may be paper copies) most convenient and economical for it, unless the Tribunal determines, on application and for good cause, that there is a compelling need for access to the documents in a different form. Requests for documents maintained in electronic form should be narrowly focused and structured to make searching for them as economical as possible. The Tribunal may direct testing or other means of focusing and limiting any search.

And regarding cost-shifting, the guidelines provide:

In resolving any dispute about pre-hearing exchanges of information, the tribunal shall require a requesting party to justify the time and expense that its request may involve, and may condition granting such a request on the payment of part or all of the cost by the party seeking the information.

So there's another example of the attempt to limit the creep of e-discovery into the realm of arbitration.

New Electronic Notice Rule in State Business & Consumer Docket Cases

The Maine state court system has taken another step closer to the world of electronic case filings used by the federal courts.

As of June 2007, in Administrative Order JB-07-1, the Maine Supreme Judicial Court created the Business and Consumer Docket (BCD), which is a statewide docket of selected cases involving business and/or consumer disputes, managed by two judges from either of the state’s two levels of trial courts.  Cases can be transferred to the BCD and are governed by an additional set of rules tailored to the BCD’s goals. 

The Supreme Judicial Court has now issued an amendment to the BCD’s rules, effective as of November 17, 2008, that will allow for all notices provided by the court to attorneys in BCD cases to be sent electronically, rather than in hard copy format. 

The new Procedural Rule 9 sets forth the parameters of electronic notice.  Under the new BCD rule, with limited exceptions for attorneys who can certify to the court that they cannot acquire an email account (and really, who can certify that?), “Any notice required or permitted to be given by the court in any matter assigned to the BCD shall be served electronically … on all attorneys representing parties having matters assigned to the BCD.”  M.R. BCD P. 9.1.  “Service of electronic notice shall be complete when transmitted, presumed to have been received by the intended recipient, and shall have the same legal effect as an original paper document.”  M.R. BCD P. 9.6.  And for purposes of computing deadlines, any applicable time limits “shall be countable from the day that the notice is served electronically.”  M.R. BCD P. 9.8.

But the state courts still are not open for electronic filing of pleadings, at least not normally.  “These rules do not require or authorize the electronic filing of documents, exhibits or other items. Electronic filing may be authorized on a case-by-case basis pursuant to an order of the BCD judge assigned to the case.”  M.R. BCD P. 9.11.

If nothing else, the electronic notices should save some postage costs for the cash-strapped judicial system.

What About E-Discovery in Arbitrations?

We hear a lot about issues concerning e-discovery in the courts.  But what about arbitration?  Although the civil e-discovery rules may not directly apply in arbitrations, there has been some movement in the direction of e-discovery in at least some arbitration proceedings.  But there also is a fair amount of resistance, based at least in part on concerns about balancing the costs against the likely need and value for the electronic data.

Some arbitration organizations have issued guidelines on e-discovery in recent months.  This posting focuses on one of those guidelines, issued by the Chartered Institute of Arbitrators (“CIArb”) in October 2008.  The CIArb is a UK-based international network of arbitrators operating in a variety of countries.

Unlike the federal rules, the CIArb’s Protocol for E-Disclosure in Arbitration starts from the presumption that e-discovery will not be the norm in all arbitrations.  Rather, the introduction to the protocol states that it “is for use in those cases (not all) in which potentially disclosable documents are in electronic form and in which the time and cost for giving disclosure may be an issue.”  The protocol expressly notes that it “is unreasonable to expect a party to take every conceivable step to preserve every potentially relevant electronic document.” 

Absent an agreement between the parties as to the scope of any e-discovery, the protocol sets specific parameters for the tribunal to consider before ordering any e-discovery.

In making any order or direction for e-disclosure the Tribunal shall have regard to considerations of:

(i) reasonableness and proportionality;

(ii) fairness and equality of treatment of the parties; and

(iii) ensuring that each party has a reasonable opportunity to present its case

by reference to the cost and burden of complying with the same. This shall include balancing considerations of the amount and nature of the dispute and the likely relevance and materiality of the documents requested against the cost and burden of giving e-disclosure.

In other words, any e-discovery should be limited in proportion to the amount in dispute in the case and the likely relevance of what is being requested.

The protocol also provides a limitation on the types of electronic data that ordinarily should be included in any e-discovery order.

The primary source of disclosure of electronic documents should be reasonably accessible data; namely, active data, near-line data or offline data on disks. In the absence of particular justification it will normally not be appropriate to order the restoration of back-up tapes; erased, damaged or fragmented data; archived data or data routinely deleted in the normal course of business operations. A party requesting disclosure of such electronic documents shall be required to demonstrate that the relevance and materiality outweigh the costs and burdens of retrieving and producing the same.

…

A party requesting disclosure of metadata in respect of electronic documents shall be required to demonstrate that the relevance and materiality of the requested metadata outweigh the costs and burdens of producing the same, unless the documents will otherwise be produced in a form that includes the requested metadata.

So under the CIArb protocol, the burden is on the requesting party to justify the need for e-discovery, rather than on the responding party to prove that the costs outweigh the potential benefit.  And the tribunal is required to “consider the appropriate allocation of costs in making an order or direction for e-disclosure.”

Some of the differences between the CIArb protocol and the Federal Rules e-discovery provisions are sublt, but there does appear to be a reluctance to adopting a regime of essentially automatic e-discovery in the arbitration context.

Company's Policy of Deleting Sensitive Documents Does Not Result in Sanctions

In an interesting decision, a court declined to sanction a party, even though the party had a policy in place to intentionally delete sensitive emails so that they wouldn’t be discovered in any litigation.

In Oldenkamp v. United American Ins. Co., 2008 WL 4682226 (N.D. Okla. Oct. 21, 2008) (click here), the plaintiffs sued their health insurance company for denial of benefits.  The plaintiffs alleged that the defendant had failed to preserve records of telephone calls and emails.  The basis for the plaintiff’s motion was the defendant’s document preservation policy, which stated in part that

e-mail and other forms of electronic communications are potentially discoverable.... Sensitive messages should be deleted from your Inbox as soon as possible. Also, any sensitive messages you send will remain in your Sent Items folder unless deleted. After deleting messages from either of these folders, they should be purged from your Deleted Items folder as soon as possible…

The plaintiffs essentially assumed that, because that policy existed, there must have been relevant emails that were destroyed. 

The court rejected that approach, noting that there “must be some proof that relevant e-mails existed and that [defendant] destroyed them intentionally.”  Id. at *3.  “Plaintiffs must offer some evidence that relevant documents have been destroyed.”  Id.  In response, the defendant asserted that it had produced all responsive documents, and that there was no indication that any responsive emails actually had been destroyed.

Without some indication that documents actually had been destroyed, the court was unwilling to assume the worst.

Don't Forget the Rules Can Protect Both Parties During Discovery

There can be some sanity when it comes to electronic discovery.  Here’s a recent example of where a party requesting electronic discovery went too far, and paid the price.

In CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. Aug. 7, 2008) (click here), the plaintiff previously filed an emergency motion to compel production of discovery, which the court had granted in part, but only on the condition that the plaintiff pay the defendant $300,000 as the costs of defendant conducting a privilege review of the requested materials.  The defendant filed a cross-motion seeking additional cost-shifting and attorneys’ fees related to the discover dispute raised by the plaintiff.

As the court summarized the situation, the plaintiff’s discovery requests “essentially called for every document at [defendant] that deals with the accused products in this case, which meant, in effect, every document in the company.”  Id. at *1.  The briefing on the discovery dispute stretched to 212 pages, with 147 exhibits.  In moving to compel, the plaintiff “made no effort either in meet-and-confer sessions or in its Emergency Motion to identify specific categories of documents that were relevant and not being provided,” and “engaged in no substantive discussion whatsoever about what discovery it really needed or why.”  Id.  The defendant actually had substantially completed production of the requested discovery less than two weeks after the deadline plaintiff sought to impose by his motion, which “included the production in native format of over 1.4 million documents that were produced as result of electronic searching that was performed by [defendant] based on 102 search terms that were ultimately selected by Plaintiff.”  Id. at *2. 

The plaintiff “filled the record with invective in both challenging the motives of [defendant] with respect to allegedly delaying discovery and challenging the honesty of [defendant’s] counsel with respect to their representations to the Court.”  Id.  Because of those allegations, the court reviewed hundreds of pages of e-mails, letters and other documents submitted with the briefs, and found that “based on its review of this entire record, Plaintiff's accusations that there had been a long campaign of stonewalling, delaying, and lying by [defendant’s] attorneys are just not true.”  Id. In particular, the court flat out rejected plaintiff’s accusation that it was the defendant which selected the electronic discovery search terms, rather than the plaintiff, finding plaintiff’s representation “extremely disturbing.”  Id. at *3. 

Based on all of that, the court held under Rule 37 that plaintiff was required to reimburse the defendant for 75% of its fees in responding to the discovery motion, which led to an award of over $86,000 in fees for the defendant.

Sometimes it may seem like no one is listening when a party responding to requests for electronic discovery complains about the burdens and costs involved, in relation to the potential relevance of what is being requested.  But at least in this case, the judge seems to have taken the time to dig into the dispute to prevent further abuse.

Update on New Federal Rule of Evidence 502

As discussed in my posting on September 9, 2008, both houses of Congress had passed S. 2450, which created a new Rule of Evidence 502 addressing waiver of the attorney-client privilege and work product protection. 

President Bush signed the bill on September 19, 2008, which became Public Law 110-322.  So the new Rule 502 will now be in effect.

As an aside, some may be wondering why Congress had to enact a law to add the new rule of evidence, rather than following the normal path where the Supreme Court simply proposes amendments to the federal rules of practice, procedure, and evidence that take effect automatically unless Congress acts affirmatively to modify, defer, or reject the proposed changes.  That's because, under the Rules Enabling Act, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b).