March/April 2007

This monthly digest on litigating in an electronic age is brought to you compliments of TGL Media, a provider of hyperlinked briefs and other litigation support. For more information on TGL Media, please click on the links above.

In this issue:

A Library of Resources for using hyperlinked briefs

New Federal E-Discovery Rules: Paging All IT Staff
Link: ABA Law Practice Magazine

The most significant news in litigation technology over the past few months is the December 1 inauguration of the new federal rules governing the discovery of electronically-stored information ("ESI").  The changes will require attorneys to be aware of technical issues from the beginning of litigation.  The new rule 26(f) requires that attorneys discuss ESI in the intial discovery conference, including such issues as the preservation of discoverable information and the form in which it will be produced.  In other words, you had better talk to your technical expert before the conference and bring your client's IT person with you to the meeting.

The Discovery Battles of Tomorrow

As document preparation moves to web-based collaborations, Ron Friedmann predicts that discovery battles soon will center around such issues as who "owns" the servers that house the draft documents and what happens to the previous versions of the documents.

How Do You Draft A Request for Gmail?
Link:  (subscription required)

So, your client is involved in litigation, and you have drafted the notice for its employees of documents to be preserved.  You have worked with the IT staff to list all of the places that electronic information can be found.  You are ready for whatever discovery requests come your way, right?

So, what about Gmail?  Yahoo mail?  .Mac mail?  A recent New York Times article discusses the issues involved when employees forward corporate mail to Web-accessible personal accounts.  The article discusses the fears of the IT staff that forwarding emails might expose proprietary secrets to hackers.  Lawyers need to be aware of this phenomenon and, at the very least, remind employees to save those emails.

What Judges Really Think About Courtroom Technology

The folks at Sensei Enterprises recently interviewed three judges to get their thoughts about technology in the courtroom.  The judges had many helpful suggestions, ranging from "be sure there are enough electrical outlets in the courtroom" to "never do anything that requires dimming the lights after lunch."

Let the Litigation Begin

Even before the new federal rules became effective, parties in litigation were accusing each other of not responding sufficiently to discovery requests seeking electronic records.  With the new rules in force, those disputes are certain to become more common and more vehement.  Several recent rulings on discovery disputes about ESI provide important cautionary tales:

The court in Wachtel v. Health Net, Inc., 2006 WL 3538935 (D. N.J. Dec. 6, 2006), found "systemic and shocking" discovery abuses, and imposed sanctions ranging from monetary fines to deputizing a discovery monitor at the defendant's expense.  The court cited several abuses, including its conclusion that the defendant's process for responding to discovery requests was "utterly inadequate, relying on an in-house paralegal also responsible for approximately 60 other cases." 

In Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006), the plaintiff's complaints included the claim that the defendant had failed to preserve any of the conversations from its customer relations chat room.  The court rejected the claim because of the relevant timeline in the case.

Finally, in Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga. Jan. 4, 2007), the court rejected the plaintiff's request to see the notice that the defendant had sent to its employees regarding documents to preserve.  The court noted that such notices usually are draffted by attorneys and err on the side of including non-relevant documents.  The court found that, not only was the notice likely to be work product, but that production could discourage companies from issuing such notices.

The Future of E-Filing in Appellate Courts


Howard Bashman, the world's best-known appellate law blogger, has written an excellent article about the future of electronic case filling in federal appellate courts.  E-filing has become routine in federal district courts, but the Courts of Appeal judges have proven more reluctant to abandon paper briefs.  Mr. Bashman points out that perhaps the greatest benefit of e-filing is that each appellate judge can have a copy of the appendix while considering his or opinion.  While not all documents currently can be reproduced in an electronic appendix,an electronic filing could accommodate most of the documents that a judge needs to review.  As judges become more familiar with technology, and the technology becomes more streamlined, paper will eventually become the exception in federal courts rather than the rule.

Jury Pool from Hell


Judge Jerry Buchmeyer's blog of legal humor, Say What?!, has the tale of a jury pool that offered the attorneys the following potential jurors:

  •  One man stood up, announced, "I’m on morphine and I’m higher than a kite,” and left.
  • Another man explained that he had been arrested and taken to a mental hospital after almost shooting his nephew.  The man had been provoked because his nephew "just wouldn't come out from under the bed."
  •  Another potential juror said that he had been arrested for soliciting sex from an undercover officer.  “I should have known something was up,” he said. “She had all her teeth.”
  •  Another juror candidly said that, in his neighborhood, "if you get [the defense attorney as your lawyer], you’re probably guilty.”


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