Sunday, August 24, 2008

2008-08-24 Pre-Litigation Duty to Preserve, Even Without Court Order - Fourth Circuit

In an August 20, 2008 decision in Buckley v. Mukasey, 2008 WL 3854498, 12 (4th Cir. 2008) the U.S. Court of Appeals for the 4th Circuit recognizes that a duty to preserve material evidence may extend to the "period before" litigation. A showing of "when" a party should know that evidence may be relevant to anticipated litigation becomes the next point of contest, and a risky one for evidence "producers."

"[W]e simply observe that (even absent a court order) “[t]he duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001)."
2008-08-24 Spoliation under Illinois Law Mirrors Residential Funding's Ordinary Negligence Analysis

In a recent decision, the District Court provides an examination of spoliation principles under Illinois law. While noting that the spoliation does constitute a separate cause of action, it points out that both Illinois state courts as well as the 7th Circuit have embraced the "ordinary negligence" standard for a finding of spoliation, aligning the 7th Circuit with the 2d Circuit's Residential Funding decision.

In Stoner v. Wal-Mart Stores, Inc., 2008 WL 3876077, 2 (C.D.Ill.,2008), the District Court analyzed the 7th Circuit's approach to spoliation in Illinois, and under Illinois law, imposing a negligence approach to showing of destruction of evidence, i.e., duty, breach, and, damages:

"In Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502 (7th Cir.2007), the Seventh Circuit summarized Illinois law regarding spoliation of evidence, as follows:[P]laintiffs brought their spoliation charges in two separate claims-one for intentional spoliation of evidence and one for negligent spoliation. The Supreme Court of Illinois has emphasized, however, that the state does not recognize a tort of intentional spoilation of evidence, and that negligent spoliation is not itself an independent tort but rather a type of negligence. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 273 (Ill.1995); see Cangemi v. Advocate S. Suburban Hosp., 845 N.E.2d 792, 815 (Ill.App.2006)(“Plaintiffs cite to no case that specifically recognizes intentional spoliation of evidence as a tort in Illinois. Neither have we found such an Illinois case.”). We thus analyze the two charges of spoliation as an ordinary negligence claim, which to prevail will eventually require showing a duty (in this case to protect documents), a breach of that duty, causation, and damages. Boyd, 652 N.E.2d at 270. Borsellino, 477 F.3d at 509-510. See also, Dardeen v. Kuehling, 821 N.E.2d 227, 231 (Ill.2004)."

Wednesday, August 20, 2008

2008-08-19 Government Ordered to Perform ESI Search, Provide Detailed Privilege Log in Criminal Case

In the second instalment of U.S. v O'Keefe, 2006-cr-0249 (D.C.D.C. 2008), Magistrate Judge Facciola extends the adoption of ESI discovery principles to criminal matters. In this decision, the Court first requires that the Government stop equivocating as to the existence of ESI, and

"examine the pertinent files and state unequivocally whether it is in possession of any documents that would fall within this discovery request, i.e. whether there have come into existence since April 1, 2006 written matter, to include electronically stored information, such as Department analyses, or other documents that concern or mention the 21 employees specified in the discovery request. It must also produce them.

Judge Facciola then applies FRCP Rule 26 to the instant criminal proceeding:

"If it believes that any of them are privileged and seeks to withhold them, then I will once again borrow a rule from the Federal Rules of Civil Procedure and require the government to "describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed. R. Civ. P. 26(b)(5). I expect this document, most commonly called a "privilege log," to so explicitly describe the documents that in camera review is unnecessary. See Victor Stanley, Inc. v. Creative Pipe, Inc., --- F.R.D. ---, 2008 WL 2221841, at *10 (D. Md. 2008)."

The first O'Keefe "borrowing," which imported Fed R. Civ. P. Rule 34 ESI discovery principles, was blogged here on 2008-02-20. The Victor Stanley decision discussing keyword search efficacy challenges was blogged here 2008-06-03. Judge Facciola's insistence on a meaningful (i.e., detailed) privilege log has significant implications for civil as well as criminal proceedings. Privilege logs are typically scant, and often go unchallenged by the requesting party. A detailed privilege log may reveal that a document is not privileged, expose discovery abuses, or constitute an admission. While assuming that the work product privilege applies in criminal cases, Judge Facciola leaves for another day (and further briefing) whether the privilege "if it applies, could trump either the government’s discovery obligation or its constitutional obligation to produce evidence that would tend to exculpate the defendant."

Link to the decision:

Tuesday, August 12, 2008

2008-08-12 Spoliation and Discovery Abuse Analysis: Convergence Continues

The distinction between spoliation and failure to produce evidence continues to blur.

In Alden v. Mid-Mesabi Associates Ltd. Partnership, 2008 WL 2828892 (D.Minn. 2008). the District Court held that "[We] understand that, as we have previously warned the Plaintiff, the failure to produce evidence, without just cause, which is relevant within the context of Rule 26, bears a close relationship to the “spoliation of evidence,” and is sanctioned accordingly. See, Sylla-Sawdon v. Uniroyal Goodrich Tire Company, supra at 280; Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th Cir.1993); SDI Operating Partnership, L.P. v. Neuwirth, 973 F.2d 652, 655 (8th Cir.1992); Scout v. City of Gordon, 849 F.Supp. 687, 690-91 (D.Neb.1994); Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989); cf., Baker v. General Motors Corp., 86 F.3d 811, 817 (8th Cir.1996), rev'd on other grounds, 522 U.S. 222 (1998)."

In the Second, Ninth, and Eleventh Circuits, failure to withhold evidence may result from a finding of "purposeful sluggishness." The seminal case for this is the Residential Funding Corp. v DeGeorge Financial Corp. 306 F.3d 99 (2d Cir. 2002).

Monday, August 11, 2008

2008-08-11 Spoliation and Work Product Privilege - Assertion Presumes Anticipation

It should be kept in mind that a party asserting the work product privilege in order to limit production of requested information is presumed to have anticipated that litigation (and triggered the invocation of Zubulake, Residential Mortgage and progeny) as of the date relevant to the underlying information for which privilege status is sought. In other words, the privilege presumes relevance as well as the foreseeability of litigation, and if Zubulake and progeny apply, a duty to preserve (including the duty to suspend routine document destruction) may be triggered.

Courts have held that an assertion of work product privilege (whether core or "fact") on a privilege log may be deemed an admission. The central prerequisite for an assertion of the work product privilege, a "party must show, as to each document, that the work product in question was: (1) prepared by, or under the direction of, an attorney and (2) was prepared in anticipation of litigation." Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264, 272 (E.D.Va. 2004). This duty to preserve (or to suspend routine document destruction) is triggered, arguably, contemporaneously with the time the evidence in question was prepared, and in the digital evidence world, created or generated. See U.S. Fire Ins. Co. v. Bunge North America, Inc., 2008 WL 2548129 (D.Kan. 2008). Once the duty to preserve/suspend is triggered, it is also triggered for all relevant (and forseeably relevant) digital evidence generated as of the time of the privileged document's preparation.