Maine Evidence and Electronic Discovery

Lawyers on TV and Photographing Court Files

I attended the Maine State Bar Association annual meeting this week, and one of the sessions focused on lawyers on TV and in the movies, and the lessons that one might draw from those portrayals in real life.

That got me to thinking about the use of cameras in Maine courts.  In state court, the Supreme Judicial Court issued Administrative Order JB-05-15 in 2005 that currently governs the use of cameras in court.  Under the current rule, the use of cameras in civil matters is more or less left up to the discretion of the presiding judge, although there are categories of civil proceedings that may not be recorded.  Under the current rule, most criminalproceedings, except for arraignments, sentencings and other non-testimonial hearings, can't be recorded.

The SJC has issued a notice of public hearing on a new proposed rule that would replace JB-05-15.  The proposed rule maintains a fairly similar list of civil matters that may not be recorded and more clearly defines the types of criminal proceedings that may be recorded.  The proposed rule also includes a new section discussing the use of cameras during Law Court arguments, stating that prior approval of the Court is not necessary.

Interestingly, the proposed rule includes the following discussion on the use of camera to take pictures of documents within court files:

An individual may photograph any documents or case file materials that are accessible to the public rather than have the clerk’s office photocopy them as long as the Clerk’s office is able to provide appropriate file safeguards, including maintaining the file in the presence of a clerk. The individual must photograph the case file material or document in a non-disruptive manner and must not use the camera in a way that is not otherwise allowed.

Apparently the notion is that, rather than waiting for the clerk to photocopy and send copies of materials in a court file, you can bring in your digital camera and take pictures yourself.  That's an interesting idea, and perhaps is designed to reduce some of the clerks' burdens in some small way.  I recently requested a copy of a court file from one of the clerk's offices, and was told the amount of the check to send in to receive copies.  After sending in the check, it took another three weeks for the clerk's office to finally copy the materials and send them back to me.  It wasn't a large amount of paper - maybe 50 pages - but undoubtedly there are higher priorities for the clerk's office, particularly with the budget constraints in which they have to operate these days.  Next time, perhaps I'll take a trip to the clerk's office with my camera to save some time.

Another Lesson on Document Retention Plans

Timing is everything.  Although it is important and useful for companies to have document retention plans in place, those plans can’t be adopted and implemented in the face of litigation as a means to destroy materials under the guise of the retention plans themselves.

That’s essentially what happened in the recent case of Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009) (click here).  In that patent infringement case, the defendant and counter-claim plaintiff orchestrated a litigation strategy over the validity of various patents.  In anticipation of that litigation, the company adopted for the first time a document retention plan under which documents of various categories and ages would be purged from the company’s files.  Many of those categories of documents including materials that likely would have been deemed relevant in the anticipated litigation that the company itself was orchestrating, including any documents that questioned the patentability of Rambus’ inventions.  The company held several “shred days” in which hundreds of boxes of documents were destroyed.  It was not until much later, once litigation essentially commenced, that a litigation hold was put in place supposedly stopping the ongoing destruction of records.  But by then, countless records already had been destroyed.

The court had little trouble finding that Rambus’ implementation of its document retention plan, in the face of anticipated litigation that Rambus itself was orchestrating, was done in bad faith.  The court found that the plaintiff suffered substantial prejudice by the destruction of relevant documents, and that the spoliation was both extensive and intentional.  As a result, the court determined that lesser sanctions would be ineffective in the context of this case, and held that the only appropriate sanction was to declare the patents in question unenforceable against the plaintiff.

The result is not very surprising, given the egregious description of the company’s practices contained in the court’s opinion.

The Rules Require Counsel to Confer About the Format for Producing Documents: Don't Forget

It pays to be clear about the format in which you want responsive documents produced.  Not only that, but the e-discovery rules actually require counsel to discuss such matters at the outset of discovery.  When that doesn't happen, both sides can end up paying the price later.

That's what happened in Covad Communications Co. v. Revonet, Inc., --- F.R.D. ---, 2008 WL 5377698 (D.D.C. Dec. 24, 2008) (click here).  There the plaintiff served a set of document requests, to which the defendant initially responded by producing hard copies of documents.  The defendant indicated that it was searching for electronic copies of additional responsive materials to fulfill its electronic discovery requirements.  Later on, the defendant informed the plaintiff that it had searched for and identified 35,000 pages of responsive emails, and that it would make those emails available for inspection in paper format.  The plaintiff objected to the paper format.  The defendant then offered to make the e-mails available in electronic format as TIFF files, but only on condition that the plaintiff agree to pay for the fees incurred by having one of defendant's legal assistants delete privileged or otherwise non-responsive documents from the electronic production set.  The plaintiff still objected, as TIFF files were not the native format for emails.

The court looked to the Sedona Conference guidelines in defining the "native format" of defendant's emails.  The defendant argued that it should be permitted to produce the emails in any format, because the plaintiff "did not specify how the e-mails were to be produced."  Id. at *2. 

The court expressed frustration that the parties had not conferred about the format for producing documents in advance of discovery.  "It does not appear that [plaintiff] and [defendant] ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others' behavior:  [plaintiff] expecting its documents in electronic form because [defendant] hired a company to collect electronically stored information, and [defendant] assuming that they should produce 35,000 pages of e-mails in hard copy because [plaintiff] produced its documents in that format."  Id. 

The court rejected the plaintiff's request to engage in a "metaphysical exercise" of attempting to construe whether its request that documents be produced "as they are kept in the ordinary course of business" in fact meant in native format, "because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production."  Id. at *2-*3.  However, the court did agree that producing emails in hard copy format most definitely was not how the defendant maintained its emails "in the ordinary course of business."

Although the defendant's "instruction is hopelessly imprecise and [defendant] could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them.  For hard copy to be an acceptable format, one would have to believe that [defendant], in its day to day operations, keeps all of its electronic communications on paper.  There is no evidence in the record that [defendant] operates in this manner, and no suggestion that such a practice would be anything but incredible.  Therefore, even though I can't say I know what [plaintiff] has asked for, I can say what they have not asked for, and that is what they got."  Id. at *3.

The court therefore ordered the defendant to reproduce the emails in native format.  Regarding the defendant's complaint that the plaintiff should have to pay for the costs of a paralegal conducting a privilege review, the court agreed to split the costs between the parties, with the plaintiff bearing no more than $2,000 of the total cost.  As the court concluded, "Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers' conferring with each other on such a fundamental question as the format of their productions of electronically stored information."  Id. at *4.

An important lesson to remember.

Other States Adopt New E-Discovery Rules

A few other states have adopted (or are in the process of adopting) amendments to their rules of civil procedure to specifically address electronic discovery, as Maine did with its new e-discovery rules effective as of last August.  (See my prior posts here and here on the Maine electronic discovery amendments.)

The Alaska Supreme Court issued Order No. 1682 on December 19, 2008, amending several of the state rules of civil procedure largely to track the 2006 amendments to the federal rules regarding e-discovery.  The Alaska rules go into effect as of April 15, 2009.

In Virginia, the Virginia Supreme Court likewise adopted a series of rules amendments addressing electronic discovery in an order issued on October 31, 2008.

Meanwhile, in California, the legislature is considering a new bill to amend California’s Civil Discovery Act to set forth procedures for electronic discovery issues.  Among other things, Assembly Bill 5, the “Electronic Discovery Act,” introduced on December 1, 2008, would "establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any other party to the action." 

California Assembly Bill 5 is very similar to Assembly Bill 926, which likewise would have amended the state's Civil Discovery Act to include e-discovery rules but was vetoed by Governor Arnold Schwarzenegger in the fall of 2008.  According to the governor's veto message, that earlier bill was vetoed because the "historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session.  Given the delay, I am only signing bills that are the highest priority for California.  This bill does not meet that standard and I cannot sign it at this time."

Maryland Court's Protocol for Discovery of Electronic Information

In case you haven’t seen it before, the U.S. District Court in Maryland has issued a Suggested Protocol for Discovery of Electronically Stored Information.  The protocol is quite detailed and comprehensive, and sets forth a process by which parties should address issues concerning the production of ESI.

Although not mandatory, the protocol alerts practitioners in matters before that court that “compliance with this Protocol may be considered by the Court in resolving discovery disputes, including whether sanctions should be awarded pursuant to Fed. R. Civ. P. 37.”  Id. at 2; see id. at 24-25 (If a party is not reasonably prepared for the Fed. R. Civ. P. 26(f) Conference of Parties in accordance with the terms of this Protocol, that factor may be used to support a motion for sanctions by the opposing party for the costs incurred in connection with that Conference.”).

The protocol recognizes that discovery of ESI may not be appropriate in every case, and assumes that parties “will consider the nature of the claim, the amount in controversy, agreements of the parties, the relative ability of the parties to conduct discovery of ESI, and such other factors as may be relevant under the circumstances” before seeking ESI.  Id. at 1.

Where discovery of ESI appears warranted based on the circumstances of a particular case, the protocol details a process by which parties and their counsel should begin addressing ESI-related issues early on.  The protocol envisions a very detailed Rule 26(f) conference, and even exchanges of pertinent information prior to the Rule 16(f) conference, such as “information relating to network design, the types of databases, database dictionaries,” and the like.  Id. at 5.  The protocol advises that a “reasonable request for a prior exchange of information should not be denied,” and that if the court later determines that the Rule 26(f) conference was “not productive” due to lack of meaningful participation by people with specific ESI knowledge, sanctions may be warranted.  Id. at 6-7. 

The protocol provides a thorough description of litigation hold procedures that the parties should consider and address, and asks the parties to identify IT personnel to serve as the “ESI coordinator” for the case.  Id. at 11. 

Importantly, the protocol instructs counsel that they should “[b]ecome reasonably familiarwith their respective clients’ current and relevant past ESI,” including “[o]bsolete or “legacy” systems containing ESI.”  Id. at 12.  Representatives of the parties, in addition to counsel, are required to participate in the Rule 26(f) conference.  Id. at 24.

The protocol instructs parties to discuss the format for producing ESI, and sets up a default for producing ESI in static format if the parties cannot agree upon another format.  Id. at 17.

Judges and commentators have looked to this protocol for guidance in resolving ESI disputes, and it is likely that other courts may follow the Maryland court’s lead in adopting similar protocols.