“This Opinion should serve as a wake-up call to the Bar in this District. . . ” When an opinion begins like that, continuing to read it is like watching a horror movie. The payoff is that shiver of relief that comes from knowing that you are only a spectator.

Magistrate Judge Andrew Peck was not happy with anyone in William J. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company.” He was not happy because, according to the opinion, the lawyers representing the parties (and one non-party involved in discovery) failed to cooperate in the creation of key terms to search an email database, leaving him to do their work.

The dispute involved alleged defects in the construction of the Bronx County Hall of Justice. The owner of that project agreed to produce documents from its construction manager (Hill), including project-related emails. As Judge Peck relates it, the project owner proposed several search terms. The other parties requested the use of thousands of additional terms, including: “sidewalk,” “driveway,” “build,” “elevator,” and “electrical.” The project owner noted that would require to the production of Hill’s entire email database since Hill was, after all, a construction manager. Hill’s counsel attempted to play Solomon, allowing that the project owner’s search terms may have been too narrow, but arguing that the other parties’ requests were certainly too broad. It proposed no search terms of its own.

Judge Peck, said the parties “left the Court in an uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill.)” Having found himself in that position his unhappiness was understandable. The judge characterized the case as “just the latest example of lawyers designing keyword searches in the dark, by the seat of their pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.”

Judge Peck discussed similar prior cases and the solutions those courts offered. He ended his discussion with this admonition: “the best solution in the entire area of electronic discovery is cooperation among counsel. This Court strongly endorses The Sedona Conference Cooperation Proclamation.”

That proclamation, issued toward the end of last year, does a masterful job of laying out the case for cooperation and a method for achieving it—and it does so in about three pages. Its conclusion:

It is time to build upon modern Rules amendments, state and federal, which address e-discovery. Using this springboard, the legal profession can engage in a comprehensive effort to promote pre-trial discovery cooperation. Our “officer of the court” duties demand no less. This project is not utopian; rather, it is a tailored effort to effectuate the mandate of court rules calling for a “just, speedy, and inexpensive determination of every action” and the fundamental ethical principles governing our profession.

William J. Gross Construction Associates, v. Am. Mfr. Mut. Ins. Co.

Thanks to who intended the Fowler/Systems Design Group/Symantec E-Discovery presentation on March 25. As mentioned, I’ve included links below to some of the documents and federal cases discussed in that presentation. One of the cases alone runs to 100 pages, so this seems a better way to distribute them than paper.

Sedona Principles Second

Qualcomm Sanctions

Lorraine v. Markel (bookmarked)

Lorraine v. Markel Lexis Summary

Hopson v. Mayor of Baltimore

Links to other sources of information:

Electronic Discovery Reference Model (EDRM)

Law.Com’s E-Discovery Road Map (based on the EDRM Model) (Each of the Nodes on the Road Map is clickable, and leads you to articles and other reference material that Law.Com has gathered relevant tot hat node.)

Thanks again to our partners in the presentation, Systems Design Group and Symantec; to Fowler attorneys Ellen Arvin Kennedy, Timothy A. West, and Matthew D. Ellison, who spoke to break-out groups; and to Jane Becker of Alltech’s in-house counsel department, who shared her knowledge on the impact of E-discovery on intellectual property litigation.

Thanks to the Bluegrass Claims Association for inviting me to discuss Electronic Discovery at their March 19 meeting. As mentioned, I’ve included links below to some of the documents and federal cases discussed in that presentation. One of the cases alone runs to 100 pages, so this seems a better way to distribute them than paper.

Update: Tiffany Phillip’s list of internet resources from her August presentation to the Fayettte Women Lawyers group is added to the list below.

Sedona Principles Second

Qualcomm Sanctions

Lorraine v. Markel (bookmarked)

Lorraine v. Markel Lexis Summary

Hopson v. Mayor of Baltimore

internet-resources-for-women-lawyers.doc

The Center for Information Technology policy has released a research paper describing how an scanner can be used to identify the unique properties of a paper document. According to the paper’s abstract, it is “a novel technique for authenticating physical documents based on random, naturally occurring imperfections in paper texture.”

The technique does not require expensive equipment, as the paper’s title suggests: “Fingerprinting Blank Paper Using Commodity Scanners.” (The link is to the project’s website where there are links to more information about the researchers involved, and a link to the full paper.)

While this is not strictly an electronic discovery issue it may speak to one of the difficulties of identifying documents created by computers and printers, a process that seemed to destroy the concept of an “original” document.

The authors will present their paper to the IEEE Symposium on Security and Privacy in Oakland, California this may. The paper is also likely to be scrutinized by attorneys. If the process is valid it has any number of applications to discovery and litigation. The authors suggest a few in their paper: Detecting forged artwork, currency or tickets; authenticating passports; and halting counterfeit goods. It will be interesting to read the first Daubert challenge that arises.

Despite the good ways this process could be used, the researchers acknowledge that it could also be used in bad ways, such as compromising the secrecy of paper ballots or the anonymity of printed surveys. Such uses would almost seem to require a conspiracy; the authors note that blank paper would have to be “fingerprinted” before ballots or surveys are printed. But the possibility exists that “the ability to re-identify ordinary sheets of paper casts doubt on any purportedly private information gather process that relies on paper forms.”

One of the researchers, Ed Felten discussed the paper at his blog “Freedom to Tinker.”

Owning up to others’ mistakes

Congratulations! You’ve just found a buyer for that old beat-up Cadillac that’s been parked in your driveway for six months. Since the car is an accident waiting to happen (after all, there must be a good reason why you won’t drive it anymore), you really want to make sure that you get your title transferred – especially because you’re canceling your insurance coverage on it effective today. What happens if your buyer hasn’t transferred the vehicle into their name with the county clerk yet, when your beloved Cadillac causes a three-car pileup?

Relax. As long as you follow your obligations under the law, you’ll stay out of hot water. The case of Graham v. Rogers is a good guide to complying with KRS 186A.215.

The seller must execute an assignment and warranty of title (on the back of the certificate) and in certain cases involving older vehicles and certificates of title, do likewise for the application for a new certificate of title. The seller is to then give physical possession of these documents, and the vehicle being sold, to the buyer. This is when ownership of the vehicle passes to the buyer – not when the county clerk receives the new title application.

The buyer is to countersign these documents, and present them to the county clerk for a new certificate of title, within 15 days of the transaction. If the seller knows the buyer hasn’t complied, they can file an affidavit with the county clerk stating that they have transferred their interest in the vehicle.

Magistrate Judge James B. Todd confronted the issue of whether production of data in native format is required in a February 2, 2009 decision. ClassicStar Mare Lease Litigation. (Master File CA-5:07-cv-353-JMH.

GeoStar Corporation had originally objected to producing electronically stored financial data, but the court ordered it to do so. Complying with that order, GeoStar produced what Magistrate Todd called “an extraordinary amount” of financial data in .tiff format, and in .dii load files permitting the parties to export the data to Summation or Concordance databases. The order compelling production did not specify the format for production.

Some of the plaintiffs then requested that Magistrate Todd order the date produced in native format. He did so, but also directed those plaintiffs to depose a GeoStar representative on the impact that production might have on GeoStar’s ongoing operations. He invited GeoStar to move for a protective order if it found one necessary.

GeoStar did make that motion. The dispute basically came down to the plaintiffs’ contention that, to to search this amount of data efficiently, they needed the metadata embedded in the native format files. They argued that this could save them several hundred hours. As Magistrate Todd viewed this argument, the plaintiffs were not arguing that the original production was not in a reasonably useable state, “only that it could be so much more useable in its native format.” It appeared to him that the plaintiffs had received the production they had asked for in their request.

Nevertheless, Magistrate Todd ordered production in native format. During the parties’ discussions about the issue, GeoStar’s counsel wrote a letter stating that the primary objection to producing the records in native format was that they would be useless without the software needed to read those data. That software was believed to cost more than $15,000. The letter stated that GeoStar would produce the data in native format “if you choose to buy the software.” Based on this letter, Magistrate Todd held that he was only enforcing GeoStar’s agreement to produce native data.

Because GeoStar had already produced the data once, and in a reasonably useable format, Magistrate Todd did order the plaintiffs to bear the cost of this second production. He directed GeoStar to provide the plaintiffs with a good-faith estimate of that cost, and based on that estimate the plaintiffs were to notify GeoStar by February 17 if they still wanted the native data.

Update: Ralph Losey of the e-Discovery Team blog (as well as two ABA books on e-discovery) extensively analyzed this opinion and three others involving native format issues in this post. Hearkening to the native-art motif of his post, he quoted Gauguin to summarize the ruling: “A compromise is the art of dividing a cake in such a way that everyone believes that he has got the biggest piece.” He also noted that the court would not have had to reach such a compromise had the parties addressed these issues early on, and if the requesting plaintiffs had done their homework. As he put it: “Do not wait until after you are slammed with Tiff and load to find religion.”

Sixth Circuit judges gathered en banc earlier this month to consider this question: “Does state law control a federal court’s imposition of sanctions as relief for spoliated evidence.”

Earlier opinions from that circuit had held that state law determined whether spoliation sanctions were available and appropriate. That is no longer the rule: “We now recognize—as does every other federal court of appeals to have addressed the question—that a federal court’s inherent powers include broad discretion to craft proper sanctions for spoliated evidence.”

Writing for the Court, Judge Boyce Martin gave two reasons for this ruling:

First, the authority to impose sanctions arises from a court’s powers to control the judicial process, not from substantive state law.

Second, spoliation rulings are evidentiary, and federal courts generally apply their own evidentiary rules.

The case arose from the complaint of a prisoner (Adkins) against a guard (Wolever). Adkins sought a spoliation instruction, alleging that video and photographic evidence of the assault had been destroyed, against prison policy.

Wolever argued against the spoliation instruction, saying the duty was not his to preserve the evidence. It was the duty of prison management. The three-judge panel who originally heard the case agreed with Wolever, based on law of the circuit at that time. (Adkins v. Wolever, 520 F.3d 585 (6th Cir. 2006.)) That opinion (also written by Judge Martin) urged the full court to hear the case, leading to the adoption of the new rule in the Sixth Circuit.

The en-banc Court did not suggest a sanction in the case before it; it held that consideration of sanctions must be case-by-case as “failures to produce relevant evidence fall ‘along a continuum of fault,’” ranging from innocent to negligent to intentional. It remanded the case to the Western District of Michigan for findings regarding where Wolever’s conduct fell on that continuum of fault.

Adkins v. Wolever, Feb. 4, 2006, Sixth Cir. No. 07-1421.

Last month Judge William Bertelsman granted summary judgment against the Kentucky Speedway in its lawsuit against the National Association of Stock Car Racing, Inc. (NASCAR) (E.D.Ky, CA 05-138). The decision reminds us that the Judge decided an e-discovery issue earlier in the same case.

In December 2006 Judge Bertelsman ruled on a request by the Kentucky Speedway to get metadata for almost all the documents it had already received in discovery. He reviewed a case that has been influential in other matters involving the discovery of metadata, Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D.Kan. 2005). Williams held that metadata should be produced as a matter of course, absent an agreement between the parties to the contrary, or a motion by the producing party for a protective order.

Judge Bertelsman rejected that approach, saying that he had the benefit of the amendments to the federal rules (which took effect in December 2006) and the commentary of scholars following Williams. He adopted the approach suggested by the Sedona Principles for Electronic Document Production: a party should not be required to produce metadata absent an agreement to do so, or a court order.

He found unpersuasive the Speedway’s argument that it needed the metadata to establish who created certain documents, or who was the proper custodian of those documents. Judge Bertelsman noted that in many cases the metadata might not provide that information. He also thought the justification was too general. He ordered the Speedway, to the extent that it sought metadata “where date and authorship information is unknown but relevant,” to identify those documents so the defendants could supply that information.

As Kentucky state courts begin to deal with issues of electronic discovery they will look to the experience of federal courts. The co-author of a series of books on the Kentucky Rules of Civil Procedure, Judge Bertelsman has had great influence on the development of procedural law in Kentucky state courts. When similar issues arise in Kentucky courts we can expect his decisions to carry some weight.

Kentucky Speedway (2006 U.S.Dist. Lexis 92028)

Business owners are often liable for injuries to their customers. The duty owed generally is one of “reasonable care” to make the premises safe. In Kentucky, however, there are three definite routes for a business owner to escape liability, without even getting to the question of what amounts to “reasonable care.”

Route 1: If the hazard in question is a natural outdoor hazard which is as obvious to the customer as it is to the premises owner, then there is no liability. EXAMPLE: A spectator at an outdoor theater slips and falls in a mud puddle, due to recent rains. The puddle was six feet wide and the slip and the fall happened in broad daylight. There should be no liability on the theater owner.

Route 2: If the hazard was not caused by the owner or its employees and the hazard was not present for a sufficient period of time, so as to give the owner a chance to remove it or provide a warning. EXAMPLE: A customer spills a drink on a supermarket floor. Store cameras establish that the spilled drink was there for less than a minute, before the injured party slipped in it and fell. There should be no liability on the supermarket.

Route 3: If the hazard is known to or obvious to the customer, the business owner owes no duty of care. EXAMPLE: A multi-floor department store is repouring concrete to repair a damaged section of floor. The area is barricaded off, but a customer accidentally falls into the section of floor. There should be no liability on the department store.

For a good discussion on business owners’ liability, see Horne v. Precision Cars of Lexington (click here for the link).

Most liability insurance policies contain an exclusion for injury or property damage “which is expected or intended by” the insured. Plenty of intentional acts (i.e., not shoveling the snow off your sidewalk) can result in unintentional injuries (i.e., someone slips and falls, and is injured).

However, Kentucky recognizes a doctrine in law called “inferred intent,” which holds that some actions are so inherently injurious that there is no possible way that the actor could allege that they did not intend the resulting damage.

In Kentucky, “inferred intent” covers things such as sexual molestation and throwing a punch. The recent decision in Kentucky Farm Bureau Mut. Ins. Co. v. Coyle (click here), solidified the holding of Stone v. Kentucky Farm Bureau Mut. Ins. Co. (a case won by our firm’s senior litigation partner, Guy Colson). These two cases make it clear that in Kentucky, the doctrine of “inferred intent” includes the act of pointing a gun at someone and pulling the trigger.

In Coyle, the victim (Elliott) was allegedly stalking Coyle’s wife. Needless to say, one day things came to a head, and Coyle and Elliott engaged in a high-speed chase, which ended when Coyle fired two shots into Elliott’s window. In his civil lawsuit, Elliott first sued Coyle for intentional assault. When KFB intervened seeking a judicial declaration of no coverage, Elliott amended his lawsuit to allege that Coyle negligently (not intentionally) fired the weapon at him. This was the only way to trigger the coverage from the KFB policy. As a side note, Coyle later pleaded guilty to first-degree assault, and gave deposition testimony indicating that he intended to fire the gun at Elliott.

Although the trial judge allowed a jury to determine otherwise (Elliott’s trial testimony was contradictory), the Kentucky Court of Appeals found the act of aiming and pointing a gun to carry an inferred intent to cause injury. While “intent” is usually a factual issue, in this case Coyle’s intentional actions were so inherently dangerous that, as a matter of law, they were intended to cause physical harm.