European Parliament overwhelmingly approved the first draft of the Digital Services Act to regulate big tech data collection and advertising
On January 20, 2022, the European Union took a major, first step in passing laws to transform how technology companies do business in the EU. There are still several steps before the laws become final, but in the initial vote the 27-nation members overwhelmingly approved tighter controls.
The proposed Digital Services Act would, among other things, require major technology companies to aggressively police content and further limit advertising. For example, the law would require companies to remove content considered illegal in the country where it is viewed. This would include such things as Holocaust denials in Germany and racist postings in France. It would also allow Europeans to more easily opt out of targeted advertising and prohibit advertising targeted at children.
To quote the colorful warning statement of Christel Schaldemose, the center-left lawmaker from Denmark who led negotiations on the bill:
With the [Digital Services Act] we are going to take a stand against the Wild West the digital world has turned into, set the rules in the interests of consumers and users, not just of Big Tech companies and finally make the things that are illegal offline illegal online too.
This is a warning shot across the bow for high technology companies everywhere.
The debate by the European Parliament and Council of the European Union on the final language is expected to take months. The law may serve as a model for the U.S. where Congress is also considering legislation. Greater control over digital practices worldwide seems inevitable. Tech companies would be wise to modify and amplify their efforts accordingly. That will make tweaking a little easier down the road when legislation is final. It is not to hard to read the writing on the wall.
I’ve escaped the e-Discovery Niche After 15 Years of Super-Specialization
Ralph Losey, January 25, 2022
After fifteen years of writing weekly blogs on e-discovery, I took three years off to focus on implementation of all those words. Now I’m back, back to where I once belonged. Writing again, but writing not just about my Big Law niche, the fun little AI corner that I had painted myself into, but back to writing about ALL of my interests in Law and Technology. That has been my home since I started in legal practice in 1980 and at the same time started coding, mostly games, but also music software, midi creations and law office technology. Proud to recall that I was one of the first computer lawyers in the country. (Also one of the first to get in trouble with the Bar for my Internet Website, FloridaLawFirm.com, which they thought was a television broadcast!)
Ralph in the early 90s
Anyway, when not haggling with the Bar and fellow attorneys who would tease me, the first nerd, and call me a “secretary” (ooh how terrible) for having a keyboard on my desk. I kid you not! I used PCs when they first came out in my law firm as the new associate. I have had them on my desk to try to work smarter ever since. Not PCs necessarily, but all kinds.
So I’m back to where I once belonged, in the great big world of technology law, making deals and giving advice. Oh yeah, I may still consult on e-discovery too, especially the AI parts that so fascinated me ever since my Da Silva Moore breakthrough days. (Thank you Judge Andrew Peck.) For my full story, some of which I had to hide in my Big Law role as a super-specialist, see: https://www.losey.law/our-people/25-uncategorized/108-ralph-losey Not many people know I was a Qui Tam lawyer too; and for both sides.
Wait, there is still more. I’ve left the best for last. I went back home, left Big Law for good, and am now practicing law with my son, Adam Losey, daughter in law, Cat Losey, and thirteen other, crazy tech lawyer types at Losey.law. Yes, that is the real domain name and the name of the firm itself is Losey. So of course I had to go there. Check it out. Practicing law with my son is a dream come true for both of us. I’m loving it. It was lonely being the only tech wiz in a giant firm. Adam knows tech better than me, is much faster in every respect (except maybe doc review with AI) and he and Cat are obviously a lot smarter.
To my long-time readers, thanks for your encouragement. I heard you and got back to my roots of general tech-law, and got back to blogging and home. To quote the Beatles the funny “Get Back” song in their great LET IT BE album:
Rosetta (who are you talking about?) about Sweet Loretta Fart. . . .
Stay tuned, because a new blog is coming at you soon. Feel free to drop me an email at Ralph at Losey dot Law. Humans only please. Robots not welcome (unless you’re from the future and don’t have weapons).
I always suggest that attorneys ask for a 502(d) Order under Federal Rules of Evidence before production of ESI. A new case out of Texas demonstrates some of the many bad things that can happen if you do not. Bellamy v. Wal-Mart Stores, Texas, LLC, No. SA-18-CV-60-XR, 2019 WL 3936992 (W.D. Tex. Aug. 19, 2019). The opinion is from one of the leading e-discovery jurists in the country, Texas District Court Judge Xavier Rodriguez. Although he allowed the inadvertently produced documents to be clawed back, it was a close call. In the process Judge Rodriguez considered those documents and sanctioned defendants based on what he read. He struck defendant’s comparative negligence defense and awarded fees and costs. It could have been worse. The accidentally disclosed attorney emails suggested multiple rule violations and a disturbing lack of candor to the court.
This is a must read opinion, not only because of who wrote it, Judge Rodriguez, and the quality of his research and analysis, but also because of the facts of the case. There are many things we can learn from the mistakes highlighted in this opinion. Including the all important ethical values of attorney candor to the court and cooperation.
I will let the learned Judge Rodriguez’ own words in Bellamy explain this case, which was colored by the attorney conduct he uncovered.
This is a slip and fall case. Plaintiff alleges that she . . tripped over a pallet while walking through sliding doors into the garden center. . . .
There have been several discovery disputes that have arisen in this case. The Magistrate Judge presided over the first round of disputes and eventually ordered that the Plaintiff’s [First] Motion for Sanctions be dismissed without prejudice to allow for the deposition of a Wal-Mart employee who may have been responsible for leaving the pallet unattended. The Magistrate Judge further ordered that Defendant supplement its disclosures and discovery responses, amend its objections, and provide Plaintiff with a privilege log as to any withheld documents.
This latest round of disputes centers on what happened next. In responding to the Magistrate Judge’s Order, a paralegal in counsel for Defendant’s office inadvertently produced documents that Defendant claims are privileged under the attorney-client privilege or work product. Plaintiff responds that some documents are not privileged. With regard to documents that are privileged, Plaintiff argues that these documents nonetheless demonstrate that Defendant’s counsel has acted in bad faith and engaged in discovery abuse.
Id. at pg. 1 of 7.
Judge Rodriguez starts with an analysis of Evidence Rule 502.
This Court encourages parties to enter into a Rule 502(d) Order[1], which states: “A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.” FED. R. EVID. 502(d). Despite this Court’s encouragement, the Defendant did not request such an Order.[2] This was the first of many mistakes by Defendant’s counsel in this case. In the absence of a 502(d) Order, the Court then turns to an analysis under Rule 502(b). . . .
In this case the privilege log was woefully deficient. Specifically, the Court is unable to ascertain the identities of various recipients of the emails in question.
Id. at pg 2 of 7.
The emails were all submitted to Judge Rodriguez for review in camera. The opinion makes clear that Judge Rodriguez did not think all of these emails were in fact privileged under case law, but plaintiff’s counsel had for some reason, not explained, conceded that they were.
But as stated above, because Plaintiff concedes that the documents are privileged, the Court will not disturb the concession that the documents are covered by the attorney-client privilege.
Id.
The elements of Rule 502(b) were met with this odd concession, so Judge Rodriguez had no choice but to order their return and prevent plaintiff from using the emails at trial, but Judge Rodriguez was not at all happy about the contents of the emails. This is where the hammer falls:
*3 Accordingly, pursuant to Fed. R. Evid. 502(b) and Fed. R. Civ. P. 26(b)(5)(B), Defendant is entitled to “claw back” the documents it inadvertently produced. But that is not the end of this analysis. Although Plaintiff may not further use these documents in this case, preventing their use in analyzing the pending motion for sanctions would result in a perverse result, upending the rules of civil procedure and encouraging discovery abuse.
Id.
Judge Rodriguez starts by noting defense counsel became aware of key witnesses and failed to disclose them.
With regard to the above individuals, Defendant failed to list them in its Fed. R. Civ. P. 26(a)(1) initial disclosures and failed to timely list them in answers to interrogatories. It is apparent from a reading of the materials submitted either Defendant’s counsel was grossly negligent in fulfilling their discovery obligations or they realized they had an uncooperative manager who was refusing to assist in their investigation, and they did not want to disclose the identities of potentially “bad” witnesses. Counsel for Defendant attempts to shift some of this blame by stating that Plaintiff was already aware of the manager and garden center employee because of her prior employment with Wal-Mart. This shifting is unpersuasive. Defendant’s counsel had obligations to provide this information and it unreasonably and untimely did not.
Id. at pg. 3 of 7.
The in camera privileged emails Judge Rodriguez read also showed that a video of the slip and fall once existed. Yikes. That is a real problem.
Counsel for Defendant never disclosed to Plaintiff’s counsel that at one time video may have existed that was now lost. Rather, counsel merely kept repeating that video does not exist.
Id.
That was way too cute. Disclosure to opposing counsel and the court was expected by Judge Rodriguez.
If that were not all bad enough, the emails revealed another hidden fact:
Finally, Plaintiff’s counsel discovered in the inadvertently produced emails that: (9) Defendant hired an
investigator to conduct a full social media/background check on the Plaintiff on June 20, 2018; and (10)
outside counsel for Defendant notified “Travis Rodmon-Legal” that surveillance had been completed on the Plaintiff and “it is debatable if the footage will be beneficial…. The investigator informs me that she moves very slowly, gingerly and hobbles a bit.”
*4 Counsel for Defendant never disclosed that it possessed video of the Plaintiff. Defendant was under an obligation to disclose any such video as a request for production had been made to that effect. Likewise, Wal-Mart had obtained numerous statements from the Plaintiff prior to her obtaining representation. These statements were requested in requests for production, but not timely disclosed. Counsel for Defendant attributes this failure to the fact that one attorney working this file left the firm and the file was reassigned and the new attorney was unaware of the video’s existence. Although this suggests no “bad faith”, at the time Wal-Mart sent its responses to requests for production and stated that it had no video of the Plaintiff it violated Rule 26(g).
Plaintiff requests that Defendant be sanctioned for failing to disclose that store surveillance video at one point existed and at some point became “lost.” Plaintiff also seeks sanctions because the Wal-Mart manager testified at her deposition that she took multiple photos (including of the pallet) and these photos have never been produced. Likewise, the manager testified that she obtained a statement from the employee who left the pallet unattended and that statement has never been produced. Plaintiff also seeks sanctions because Wal-Mart did not preserve the pallet in question. Finally, Plaintiff requests sanctions generally for Defendant’s failure to honor its discovery obligations. Plaintiff also requests that the Court provide an adverse inference instruction to the jury regarding the missing information. Plaintiff seeks these various sanctions citing generally to Fed. R. Civ. P. 37 and the court’s “inherent
authority.”
Id.
Judge Rodriguez examines the law on sanctions and then considers the ethical Duty of Candor to the Court (Rule 3.3, Model Rules of Professional Conduct) the Duty of Cooperation and Rule 1, FRCP (just, speedy and inexpensive).
D. Duty of Candor, Cooperation and FED. R. CIV. P. 1
Counsel for Defendant wisely opened its Response brief with the following: “Defendant’s counsel
acknowledges and accepts it made mistakes during the discovery of this matter. It accepts that consequences may come from the Court as it considers Plaintiff’s Motions before the Court.”
It is apparent that at the time of the accident, Defendant considered this a low-value or nuisance case. It did not contemplate the severity of the Plaintiff’s injuries and medical treatment. But once Plaintiff placed Defendant on notice that she was going to pursue litigation, reasonable and proportionate preservation obligations were required to be met. Likewise, defense counsel may be on billing constraints, but discovery obligations and adherence to the rules of civil procedure must be met.
*7 Federal Rules of Civil Procedure 1 and 26(f) contemplate that the parties meet in good faith to discuss the case and facilitate resolution of the case and discovery issues because the parties have an obligation “to secure the just, speedy, and inexpensive determination of every action.” Rather than complying with the rules, defense counsel delayed the production of adverse material and the identity of witnesses and the extent of the inappropriate acts only fully became revealed after an inadvertent production of emails was made (after intervention by the Magistrate Judge).
Id. at pgs. 5-6 of 7.
Judge Rodriguez then concludes:
A reading of the file in this case makes apparent that Wal-Mart has known early on that it is responsible for the pallet being left unattended for some period of time in an area frequented by customers. Many counsel for defendants argue that the burden is on a plaintiff to establish all elements of their causes of action. That is true. But if that is going to be the Defendant’s strategy (even when knowing they will likely suffer defeat), this Court is not sympathetic to complaints that litigation is too expensive. In this case, rather than focusing on the extent of Plaintiff’s damages, Wal-Mart has now expended significant time and fees on the liability issue its own claims investigator conceded a long time ago.
Conclusion
Defendant’s Motion to Abate or Strike Plaintiff’s Second Motion for Sanctions (docket no. 49) is DENIED, but as stated above Plaintiff may not use the inadvertently produced documents for any other purpose and counsel must return any documents still in Plaintiff’s possession, if any, to Defendant. Plaintiffs’ Motion for Sanctions (docket no. 50) is GRANTED as stated above. Defendant may not assert any comparative negligence defense in this case, including arguing that the danger was open and obvious.
I know, I know, it used to be good enough just to save the relevant emails and ESI on company computers. Not any more. Times are changing. Important business is now conducted by phone text and other messages. It’s time we all reach out and save something new, save the texts, save the phones. That directive applies to everyone, that means you too. Prince record company executives recently found that out the hard way in District Court in Minneapolis. Paisley Park Enters. v. Boxill, No. 0:17-cv-01212, (D. Minn., 3/5/19) (copy here: Prince_Discovery_Order).
United States Magistrate Judge Tony N. Leung sanctioned the record company defendant and its two top executives in a suit over the posthumous release of Prince’s “Deliverance” album. They were sanctioned because the plaintiff, the Prince Estate via Paisley Park, proved that the defendant executives intentionally destroyed text messages about the album. They denied bad intent and claim they did what they thought the law required, save the emails and office computer data. Defendants claimed they provided discovery from other sources of ESI, including their work computers, cooperated with a forensic data firm to ensure Plaintiffs obtained everything they sought, but, they further argue that Plaintiffs never asked to inspect their cell phones during this process. They claimed they did not know they also had to preserve their text messages.
One is reminded of the first verse to Purple Rain:
I never meant to cause you any sorrow
I never meant to cause you any pain
I only wanted to one time to see you laughing
I only wanted to see you
Laughing in the purple rain
Judge Tony Leung was not laughing, purple rain or not. He did not believe defendants’ good faith intent argument. He was no more impressed by their “times are changing,” “we didn’t know” argument than Prince was in Purple Rain. In today’s world preservation of email is not enough. If text messages are how people did business, which was the case in Paisley Park, then these messages must also be preserved. As Judge Leung put it:
In the contemporary world of communications, even leaving out the potential and reality of finding the modern-day litigation equivalent of a “smoking gun” in text messages, e-mails, and possibly other social media, the Court is baffled as to how Defendants can reasonably claim to believe that their text messages would be immune from discovery.
Perhaps what really got to the judge was that these record executives not only the deleted the texts, they wiped the phones and then they threw them away. This was all before suit was filed, but they knew full well at the time that the Estate was going to sue them for copyright violations. As Judge Leung explained (emphasis added): “An e-discovery lawyer for Plaintiffs’ law firm indicates that had Staley and Wilson not wiped and discarded their phones, it might have been possible to recover the deleted messages. (ECF No. 387, p. 2).” (Note: this is the first time I can recall this expression “e-discovery lawyer” being used in an opinion.)
Text Message Spoliation Law
Judge Leung provides a good summary of the law.
The Federal Rules of Civil Procedure require that parties take reasonable steps to preserve ESI that is relevant to litigation. Fed. R. Civ. P. 37(e). The Court may sanction a party for failure for failure to do so, provided that the lost ESI cannot be restored or replaced through additional discovery. Id. Rule 37(e) makes two types of sanctions available to the Court. Under Rule 37(e)(1), if the adverse party has suffered prejudice from the spoliation of evidence, the Court may order whatever sanctions are necessary to cure the prejudice. But under Rule 37(e)(2), if the Court finds that the party “acted with the intent to deprive another party of the information’s use in the litigation,” the Court may order more severe sanctions, including a presumption that the lost information was unfavorable to the party or an instruction to the jury that it “may or must presume the information was unfavorable to the party.” The Court may also sanction a party for failing to obey a discovery order. Fed. R. Civ. P. 37(b). Sanctions available under Rule 37(b) include an order directing that certain designated facts be taken as established for purposes of the action, payment of reasonable expenses, and civil contempt of court.
Pgs.6-7
There is no doubt that Staley and Wilson are the types of persons likely to have relevant information, given their status as principals of RMA and owners of Deliverance. Nor can there be any reasonable dispute as to the fact that their text messages were likely to contain information relevant to this litigation. In fact, Boxill and other third parties produced text messages that they sent to or received from Staley and Wilson. Neither party disputes that those text messages were relevant to this litigation. Thus, the RMA Defendants were required to take reasonable steps to preserve Staley and Wilson’s text messages.
The RMA Defendants did not do so. First, Staley and Wilson did not suspend the auto-erase function on their phones. Nor did they put in place a litigation hold to ensure that they preserved text messages. The principles of the “standard reasonableness framework” require a party to “suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Steves and Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 108 (E.D. Va. 2018) (citation and internal quotation marks omitted). It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone. It is apparent, based on Staley’s affidavit, that he and Wilson could have taken advantage of relatively simple options to ensure that their text messages were backed up to cloud storage. (ECF No. 395, pp. 7-9). These processes would have cost the RMA Defendants little, particularly in comparison to the importance of the issues at stake and the amount in controversy here. Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably.
Pgs. 8-9
But that is not all the RMA Defendants did and did not do. Most troubling of all, they wiped and destroyed their phones after Deliverance and RMA had been sued, and, in the second instance for Wilson, after the Court ordered the parties to preserve all relevant electronic information, after the parties had entered into an agreement regarding the preservation and production of ESI, and after Plaintiffs had sent Defendants a letter alerting them to the fact they needed to produce their text messages. As Plaintiffs note, had Staley and Wilson not destroyed their phones, it is possible that Plaintiffs might have been able to recover the missing text messages by use of the “cloud” function or through consultation with a software expert. But the content will never be known because of Staley and Wilson’s intentional acts. The RMA Defendants’ failure to even consider whether Staley and Wilson’s phones might have discoverable information before destroying them was completely unreasonable. This is even more egregious because litigation had already commenced.
Pg. 9
It is obvious, based on text messages that other parties produced in this litigation, that Staley and Wilson used their personal cell phones to conduct the business of RMA and Deliverance. It is not Plaintiffs’ responsibility to question why RMA Defendants did not produce any text messages; in fact, it would be reasonable for Plaintiffs to assume that Defendants’ failure to do so was on account of the fact that no such text messages existed. This is because the RMA Defendants are the only ones who would know the extent that they used their personal cell phones for RMA and Deliverance business at the time they knew or should have reasonably known that litigation was not just possible, but likely, or after Plaintiffs filed suit or served their discovery requests.
Furthermore, the RMA Defendants do not get to select what evidence they want to produce, or from what sources. They must produce all responsive documents or seek relief from the court. See Fed. R. Civ. P. 26(c) (outlining process for obtaining protective order).
Pg. 12
Having concluded that the RMA Defendants did not take reasonable steps to preserve and in fact intended to destroy relevant ESI, the Court must next consider whether the lost ESI can be restored or replaced from any other source. Fed. R. Civ. P. 37(e).
Pg. 13
While it is true that Plaintiffs have obtained text messages that Boxill and other parties sent to or received from Staley and Wilson, that does not mean that all responsive text messages have been recovered or that a complete record of those conversations is available. In particular, because Wilson and Staley wiped and destroyed their phones, Plaintiffs are unable to recover text messages that the two individuals sent only to each other. Nor can they recover text messages that Staley and Wilson sent to third parties to whom Plaintiff did not send Rule 45 subpoenas (likely because they were not aware that Wilson or Staley communicated with those persons). The RMA Defendants do not dispute that text messages sent between Staley and Wilson are no longer recoverable. . . .
At most, Plaintiffs now can obtain only “scattershot texts and [e-mails],” rather than “a complete record of defendants’ written communications from defendants themselves.” First Fin. Sec., Inc. v. Lee, No. 14 cv-1843, 2016 WL 881003 *5 (D. Minn. Mar. 8, 2016). The Court therefore finds that the missing text messages cannot be replaced or restored by other sources.
Pgs. 13-14
There is no doubt that Plaintiffs are prejudiced by the loss of the text messages. Prejudice exists when spoliation prohibits a party from presenting evidence that is relevant to its underlying case. Victor Stanley, 269 F.R.D. at 532. As set forth above, in the Court’s discussion regarding their ability to replace or restore the missing information, Plaintiffs are left with an incomplete record of the communications that Defendants had with both each other and third parties. Neither the Court nor Plaintiffs can know what ESI has been lost or how significant that ESI was to this litigation. The RMA Defendants’ claim that no prejudice has occurred is “wholly unconvincing,” given that “it is impossible to determine precisely what the destroyed documents contained or how severely the unavailability of these documents might have prejudiced [Plaintiffs’] ability to prove the claims set forth in [their] Complaint.” Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 110 (S.D. Fl. 1987); see also Multifeeder Tech., Inc. v. British Confectionary Co. Ltd, No. 09-cv-1090, 2012 WL 4128385 *23 (D. Minn. Apr. 26, 2012) (finding prejudice because Court will never know what ESI was destroyed and because it was undisputed that destroying parties had access to relevant information), report and recommendation adopted in part and rejected in part by 2012 WL 4135848 (D. Minn. Sept. 18, 2012). Plaintiffs are now forced to go to already existing discovery and attempt to piece together what information might have been contained in those messages, thereby increasing their costs and expenses. Sanctions are therefore appropriate under Rule 37(e)(1).
Sanctions are also appropriate under Rule 37(e)(2) because the Court finds that the RMA Defendants acted with the intent to deprive Plaintiffs of the evidence. “Intent rarely is proved by direct evidence, and a district court has substantial leeway to determine intent through consideration of circumstantial evidence, witness credibility, motives of the witnesses in a particular case, and other factors.” Morris v. Union Pacific R.R., 373 F.3d 896, 901 (8th Cir. 2004). There need not be a “smoking gun” to prove intent. Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018). But there must be evidence of “a serious and specific sort of culpability” regarding the loss of the relevant ESI. Id.
Pgs. 15-16
The Court can draw only one conclusion from this set of circumstances: that they acted with the intent to deprive Plaintiffs from using this information. Rule 37(e)(2) sanctions are particularly appropriate as to Wilson, RMA, and Deliverance for this reason as well.
Pg. 17
The Court believes that Plaintiffs’ request for an order presuming the evidence destroyed was unfavorable to the RMA Defendants and/or for an adverse inference instruction may well be justified. But given the fact that discovery is still on-going, the record is not yet closed, and the case is still some time from trial, the Court believes it more appropriate to defer consideration of those sanctions to a later date, closer to trial. See Monarch Fire Protection Dist. v. Freedom Consulting & Auditing Servs., Inc., 644 F.3d 633, 639 (8th Cir. 2011) (holding that it is not an abuse of discretion to defer sanction considerations until trial). At that point, the trial judge will have the benefit of the entire record and supplemental briefing from the parties regarding the parameters of any such instruction or presumption.
The Court will, however, order the RMA Defendants to pay monetary sanctions pursuant to Rules 37(b), and 37(e) and the Court’s pretrial scheduling orders.
Pgs. 18-19
The Court will therefore order, pursuant to Rules 37(b)(2)(C), 37(e)(1), and 37(e)(2) and the Court’s pretrial scheduling orders, the RMA Defendants to pay reasonable expenses, including attorney’s fees and costs, that Plaintiffs incurred as a result of the RMA Defendants’ misconduct. The Court will order Plaintiffs to file a submission with the Court detailing such expenses and allow the RMA Defendants the opportunity to respond to that submission. In addition, pursuant to Rule 37(e)(2) and the Court’s pretrial scheduling order, the Court will also order the RMA Defendants to pay into the Court a fine of $10,000. fn3 This amount is due within 90 days of the date of this Order.
Ralph Losey is an Arbitrator, Special Master, Mediator of Computer Law Disputes and Practicing Attorney, partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other cool lawyers. We handle projects, deals, IP of all kinds all over the world, plus litigation all over the U.S. For more details of Ralph's background, Click Here
All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books.
Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management.
Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with incredible cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.
12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.
Posted by Ralph Losey 
I always suggest that attorneys ask for a 502(d) Order under Federal Rules of Evidence before production of ESI. A new case out of Texas demonstrates some of the many bad things that can happen if you do not. 
The elements of Rule 502(b) were met with this odd concession, so Judge Rodriguez had no choice but to order their return and prevent plaintiff from using the emails at trial, but Judge Rodriguez was not at all happy about the contents of the emails. This is where the hammer falls:
The in camera privileged emails Judge Rodriguez read also showed that a video of the slip and fall once existed. Yikes. That is a real problem.
United States Magistrate Judge Tony N. Leung sanctioned the record company defendant and its two top executives in a suit over the posthumous release of Prince’s “Deliverance” album. They were sanctioned because the plaintiff, the Prince Estate via Paisley Park, proved that the defendant executives intentionally destroyed text messages about the album. They denied bad intent and claim they did what they thought the law required, save the emails and office computer data. Defendants claimed they provided discovery from other sources of ESI, including their work computers, cooperated with a forensic data firm to ensure Plaintiffs obtained everything they sought, but, they further argue that Plaintiffs never asked to inspect their cell phones during this process. They claimed they did not know they also had to preserve their text messages.
Judge Tony Leung was not laughing, purple rain or not. He did not believe defendants’ good faith intent argument. He was no more impressed by their “times are changing,” “we didn’t know” argument than Prince was in Purple Rain. In today’s world preservation of email is not enough. If text messages are how people did business, which was the case in Paisley Park, then these messages must also be preserved. As Judge Leung put it:
e-Discovery Team ® 