TWENTY FORTH ANNUAL SOUTHERN SURETY AND FIDELITY CLAIMS CONFERENCE Charleston, South Carolina APRIL 18 TH & 19 TH, 2013

Transcription

1 TWENTY FORTH ANNUAL SOUTHERN SURETY AND FIDELITY CLAIMS CONFERENCE Charleston, South Carolina APRIL 18 TH & 19 TH, 2013 TRENDING ISSUES IN CONSTRUCTION EXPERT DISCOVERY PRESENTED BY: Sandra Sutak Krebs, Farley & Pelleteri, P.L.L.C. 400 Poydras Street, Suite 2500 New Orleans, LA 70130

2 I. Introduction Construction litigation is time consuming and expensive. As evidenced by the case of Greater Lafourche Port Commission v. James Construction Group, which involved a project which commenced in April 2005, entered into litigation in November 2006, and was still pending in September 2012, construction cases can turn into epic sagas which last for years after a project s completion date. 1 The reason for this, at least in part, is that construction litigation is often multi-party, multi-issue, and multijurisdictional. The Chinese Drywall multidistrict litigation, for example, though sounding more in products liability, involved a wide range of interrelated legal issues concerning defective construction, as well as numerous parties with different interests, claims, and potential liability, all of which needed to be resolved before the litigation could be resolved. 2 Construction disputes also typically require the analysis and resolution of complex factual issues as to quality, time, and/or money, areas which are technical in nature and therefore necessitate technical/expert evidence. Attorneys work with construction experts in having them formulate opinions either in anticipation of litigation or during litigation. During this time, the lawyer talks with the expert and shares sensitive information in various forms, including electronic formats, which creates the potential for privilege and disclosure issues. Specifically, in the course of preparing an expert, an attorney may relay attorney-client communications and/or disclose work product materials. The attorney may also provide facts and data which contain attorney opinions, thoughts, or mental impressions. Using this information, the expert in turns prepares various outlines, memoranda, reports, and draft reports. Are these discoverable? If so, to what extent? And under what standards? Is it relevant that the expert did not rely upon or consider the information he was given in formulating an opinion? All of these questions may arise in the context of the attorney/expert relationship. Complicating the determination of these issues is the fact that construction litigation routinely involves an excessive number of potentially discoverable communications and documents, a large portion of which are stored electronically. Parties, as well as their attorneys, have a legal duty to preserve relevant information in anticipation of litigation and during litigation, as well as a corresponding interest in guarding against the inadvertent disclosure of privileged information. To this end, attorneys must collect all potentially relevant information, including electronically stored information ( ESI ), including ESI generated by and between it and its expert, and review this ESI for privilege prior to production. This paper addresses the scope of protection afforded to information disclosed to experts under the recently amended Federal Rule 26, and also touches upon preservation, spoliation, and privilege issues relating to ESI. Familiarity with the law in these areas is crucial to working effectively with construction expert witnesses while simultaneously protecting privileged information disclosed to those experts and managing the discovery process as it pertains to ESI. A misstep in any of these arenas 1

3 may result in a rule compelling the production of privileged material or a preclusion order, which could make the difference between winning and losing a lawsuit. II. Experts and the Disclosure of Protected Information A. Pre-amendment Federal Rule 26 A significant issue throughout the years has been the application of the federal work product doctrine under Rule 26(b)(3) and its impact on expert discovery under Rule 26(b)(4), which designates the disclosures required from testifying and nontestifying experts. The federal work product doctrine, as codified in Rule 26(b)(3), shields from discovery documents and tangible things prepared by or for a party or that party s representative in anticipation of litigation or for trial. 3 A showing of substantial need is required before production will be ordered, 4 and even if that showing is made, the court still must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party s attorney or other representative concerning the litigation. 5 This type of material is often labeled core work product and is not discoverable. However, courts historically took different views on whether work product shared with an expert was discoverable, and the circumstances under which it could be discovered. 6 Before the 2010 amendments to Rule 26, courts struggled to define the extent and type of waiver that resulted from the disclosure of work product to expert witnesses, as well as the showing needed to discover work product disclosed to an expert. 7 The tension was particularly acute because of the conflicting rationales of Rule 26(b)(3), regarding the protection of opinion work product, and Rule 26(b)(4), regarding the importance of discovering materials on which expert testimony is based. 8 Some courts held that pretty much anything a lawyer gave to an expert was discoverable, even when documents containing attorney work product were provided to the testifying expert. 9 Other courts used a balancing approach to determine whether work product shown to experts was discoverable, examining factors like the nature of the work product sought, the value of the information for impeachment, and the interests that the work product doctrine was intended to promote. 10 Other courts ruled that opinion work product was per se protected, even when used by an expert to formulate his testimony. 11 Because of the uncertainty in this area, there was always a possibility that counsel would be required to produce work product shared with an expert. Therefore, it was common practice for an attorney to withhold documents from its expert if they contained the attorney s opinions or mental impressions, which resulted in significant expense and loss of efficiency. B. Post Amendment Federal Rule 26 The 2010 amendments to Rule 26 resolved the split of authority in favor of greater protection of information disclosed to experts in four principal ways. First, Rule 26(a)(2)(B)(ii) in its amended form requires a testifying expert to produce a report which contains the facts or data considered by the witness in forming his opinion, whereas 2

4 under the previous Rule 26(a)(2)(B)(ii), a testifying expert was required to produce a report disclosing the data or other information that was considered in formulating his opinion. 12 As courts often interpreted other information to include attorney-client communications and/or work product, the advisory committee specified that [t]he refocus of disclosure on facts or data [was] meant to limit disclosure of material of a factual nature by excluding theories or mental impressions of counsel. 13 The committee also explained, however, that facts or data is to be interpreted broadly to require disclosure of any material considered by the expert, from whatever source, that contains factual ingredients. 14 Second, Rule 26(b)(4)(B) provides work product protection for drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. 15 The same protection extends to drafts of a supplemental report under Rule 26(e). 16 Notably, Rule 26(b)(4)(B) incorporates the work product rule set forth in Rule 26(b)(3), so the production of a draft report may still be ordered if the requesting party shows that it has a substantial need for the materials and cannot, without undue hardship, obtain their equivalent by other means. 17 The court must still protect against the disclosure of core work product, however. Notes, outlines, task lists, letters, memoranda, and presentations prepared by an expert or non-attorney concerning or relating to draft expert reports are not protected and must be disclosed. 18 Third, amended Rule 26(b)(4)(C) extends work product protection to direct communications between attorneys and retained experts, regardless of the form of the communications, except to the extent that the communications: (1) relate to the expert s compensation; (2) identify facts or data that the party s attorney provided and that the expert considered in forming his opinion; and (3) identify assumptions that the party s attorney provided and that the expert relied on in forming his opinion. 19 Courts have utilized this rule to protect from disclosure all communications between the expert and his staff and counsel unless one of the noted exceptions applies. 20 Conversely, communications among the expert, his staff, and any non-attorneys (including experts) are not protected, even if an attorney is (incidentally) copied on the communication. 21 Thus, to the extent that a communication is not between the expert, his staff, and counsel, and contains no theories or mental impressions of counsel, it must be produced. 22 Fourth, under Rule 26(b)(4)(D), facts know or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial who is not expected to be called as a witness at trial are not discoverable absent a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means. 23 Such non-retained experts are frequently used in construction disputes because project personnel are often subject matter experts and testify as hybrid witnesses who provide factual testimony about events on the project, plus opinion testimony in their specific area of expertise. These experts presumably do not need to provide a report. 3

5 In extending protection to facts known by a non-testifying expert, courts have held that communications between a testifying expert and a consulting expert, as well as any drafts of an expert report that were sent by the consulting expert to the testifying expert, are protected from disclosure under the revised Rule 26(a)(2)(B). 24 Only to the extent that communications from the consulting expert include facts or data relied upon by the testifying expert would they be subject to discovery. 25 Also notable is that any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery. 26 Therefore, if a witness appointed by the court as a fact expert, but also retained by a party as a testifying expert drafts a report, and there is a minimum of ambiguity as to the role played by the expert in drafting the report, the court will likely order production of the draft report. 27 As stated above, under the 2010 amendments to Rule 26, discovery of attorneyexpert communications and draft expert reports is generally prohibited. However, Rule 26, even in its revised form, poses a challenge for litigators. First, the amended rules do not directly address the disclosure of pre-existing work product to an expert, as opposed to attorney-expert communications. Where counsel provides pre-existing work product to a testifying expert, the rule may require disclosure of work product to the extent that it reflects fact or data considered by the expert. Indeed, the advisory committee notes provide several examples of situations where opposing counsel can discover facts or data considered by the expert notwithstanding extension of workproduct protection. For example, the expert s testing of material involved in the litigation, and notes of any such testing, would not be exempted from discovery by this rule. Similarly, as reflected in the case law, communications the expert has with anyone other than the party s counsel about the opinions expressed is unaffected by the rule. Finally, an attorney s selection of documents shown to a witness to prepare that witness for deposition or trial testimony are not necessarily the protected work product of an attorney, and may need to be produced during the testimony of that witness. 28 III. Electronic Discovery ESI has become the dominant form of discovery in the litigation process, and the duty to preserve and produce discoverable ESI in anticipated or pending litigation has led to ballooning discovery costs and the increased potential for the unintentional disclosure of privileged information. One unique aspect of ESI is its sheer volume, with data collections running into the gigabytes or even terabytes. 29 Electronic communications constitute a significant portion of potentially discoverable ESI, and it is estimated that on average, an employee sends and receives about fifty s per day, which can amount to more than 1,200,000 messages a year for an organization of 100 employees. 30 A company of 100,000 employees could be storing up to 1.5 billion e- mails annually. 31 Another unique aspect of ESI is that the native file, which describes the file in the form the information was originally created and is used in the normal course of operations, contains embedded data. 32 This embedded data, called metadata, provides information about the electronic file, such as when the document 4

6 was created, the author s identity, when and by whom it was edited, as well as the substance of those edits. 33 Construction disputes often involve a large volume of ESI generated by both the project actors themselves as well as the various entities involved in any subsequent litigation. Accordingly, it is important to be mindful of the various pitfalls which may arise in the discovery of ESI when working with a construction expert. A. Duty to Preserve ESI When litigation is reasonably anticipated, a party has a legal duty to preserve evidence it has control over and reasonably knows or reasonably should know is material to a potential or pending litigation. 34 In the context of ESI, the duty to preserve also likely includes the obligation to suspend routine document retention/destruction policies and to put a litigation hold in place to ensure preservation of electronic documents. 35 The preservation requirement can create a heavy financial burden, as exemplified by ExxonMobil, which reportedly spends $1.9 million per month maintaining electronic information on backup tapes for litigation. 36 Litigants also have a duty to guard against the spoliation of electronic data. Spoliation, which is the destruction, significant alteration of, or failure to preserve evidence in pending or reasonably foreseeable litigation, 37 may result in the imposition of sanctions such as dismissal, preclusion of evidence, an adverse inference instruction, a monetary fine, and/or the assessment of attorney s fees and costs. 38 Courts generally apply the following five factors when analyzing which sanction to assess: (1) the significance of the destroyed evidence; (2) the offending party s culpability; (3) fundamental fairness; (4) alternative sources of the same information that was destroyed; and (5) the effectiveness of a sanction less severe than dismissal. 39 To justify the harsh sanction of dismissal, a court must consider both the spoliator s conduct and the prejudice caused, and conclude that either: (1) the spoliator s conduct was so egregious as to amount to a forfeiture of his claim; or (2) the effect of the spoliator s conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim. 40 Courts have not been uniform in defining the level of culpability that is required before finding that sanctions for spoliation of evidence are warranted. 41 The U.S. District Court for the Eastern District of Virginia found that dismissal for spoliation, as well as an assessment of attorney s fees and costs, was warranted in Taylor v. Mitre Corporation. 42 There, plaintiff s egregious discovery conduct included physically destroying a relevant computer with a hammer, downloading Evidence Eliminator 43 shortly after the court ordered inspection of his computer, and later discarding the computer in a landfill, resulting in the destruction of an estimated 16,000 potentially relevant files, at a minimum. 44 These actions were performed after the plaintiff was advised by the counsel he hired in anticipation of litigation that he must preserve all electronic files, and that any deletion or attempted deletion of files could result in sanctions for spoliation and dismissal of the claim. 45 Analyzing the prejudicial 5

7 impact of plaintiff s intentional actions, the court rejected plaintiff s assertion that the lost data was not relevant, instead finding that a primary failure in the case was plaintiff s misconception that he alone determines what is relevant to the case. 46 Without confidence in what was or was not retained by the plaintiff, the court found that he had unduly prejudiced the defendant s preparation of its case, warranting dismissal. 47 In Evans v. Mobile County Health Dept., the U.S. District Court for the Southern District of Alabama found that dismissal for spoliation was not warranted, although the plaintiff had spoliated in bad faith, because it was not a case where spoliation had left defendant unable to present its case. 48 Specifically, although plaintiff admitted that she had burned and replaced the computer she had used during the time of her alleged harassment after she had filed suit, the court found that additional relevant s were likely available from the plaintiff s web-based account (which was unaffected by plaintiff s spoliation of her hard drive). 49 Accordingly, the court granted defendant s motion to compel the additional ESI, as well as plaintiff s new computer, and imposed monetary sanctions, including an adverse inference instruction. 50 B. Protecting Privilege in the Discovery of ESI Attorneys have a legal duty to perform a reasonable inquiry before responding to discovery requests, and may face sanctions under Rule 26(g) for certifying that a disclosure is complete and correct if it is later determined that it was not. 51 For example, in Branhaven LLC v. Beektek, Inc., the U.S. District Court for the District of Maryland awarded sanctions for wrongful certification under Rule 26(g), where an attorney responded to discovery requests by stating that his client would make responsive documents available for inspection and copying at a mutually convenient time, but at the time of the response, had done little more than forward the requests to his client, and several of the chief sources for the ultimately produced data two servers and two computers had not yet been accessed, nevermind searched. 52 Additionally, before producing ESI requested in discovery, an attorney must perform a privilege review of all of the collected ESI, or else risk waiving attorney-client and work product protections. 53 Under Federal Rule of Evidence 502(b), enacted in 2008, inadvertent disclosures of privileged materials are treated more leniently than they were in the past, especially in cases involving electronic discovery. 54 The rule provides that an inadvertent disclosure will not result in a waiver of privilege if the holder of the privilege... took reasonable steps to prevent disclosure and promptly took reasonable steps to rectify the error once the disclosure was noticed. 55 Moreover, under 502(d), a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court in which event the disclosure is also not a waiver in any other federal or state proceeding. 56 In an illustrative case, Inhalation Plastics, Inc. v. Medex Cardio-Pumlonary, Inc., the U.S. District Court for the Southern District of Ohio found that the attorney-client privilege had been waived as to 347 pages of inadvertently produced s, because the defendant had failed to show the reasonableness of the precautions taken to avoid 6

8 the disclosure, and had also failed to take adequate measures to rectify or mitigate the damage of the disclosure. 57 Specifically, during discovery, a collection of 7,500 pages of s in hard copy were produced, despite prior production in electronic format. 58 The pages were not marked confidential as required in the parties stipulated protective order and as had been done in prior productions. 59 Upon learning of the inadvertent production, the defendant asserted that all s involving any of the subject employees (two attorneys and one paralegal) were privileged and had been inadvertently produced. 60 Subsequently, when plaintiff attempted to use several of the inadvertently produced s at a deposition, defendant again asserted that the documents were inadvertently produced and attempted to claw them back. 61 Thereafter, plaintiff moved for a determination from the court on whether the documents were privileged. 62 Following in camera review, the court determined that many of the documents were attorney-client privileged. 63 The court then then analyzed whether privilege had been waived under FRE The court began its analysis by citing the five-factor test which is generally used by courts to determine whether a party is entitled to claw back inadvertently produced documents. 65 The factors include: (1) the reasonableness of the precautions taken in view of the extent of document production, (2) the number of inadvertent disclosures, (3) the magnitude of the disclosure, (4) any measures taken to mitigate the damage of the disclosures, and (5) the overriding interests of justice. 66 The court found that defendant had failed to establish that it took reasonable precautions under the first factor, because it could not specify exactly who conducted the review, or how (defendant generally asserted that the production was reviewed by several layers of attorneys ). 67 The court also disapprovingly cited defendant s failure to provide a privilege log, especially given that several layers of lawyers had supposedly conducted the review. 68 As to the second factor, the court found that 4.6% of the production was inadvertently produced, and that this number was relatively high in view of the small number of documents contained in the production and the claim that they were reviewed by several layers of attorneys. 69 The court then concluded that, as to the third factor, the magnitude of the disclosure was high for reasons including that the documents seemed particularly relevant to plaintiff s claims and that plaintiff had already attempted to use the documents at deposition. 70 As to the fourth factor, the court acknowledged defendant s immediate assertions that the documents had been inadvertently produced, as well as his attempt to claw them back, but took issue with defendant s failure to adhere to the procedures for inadvertent production under Federal Rule 26(b)(5)(B). 71 As a result, the court ruled that the defendant had failed to take adequate measures to mitigate the damages and had waived attorney-client privilege as to those s. 72 IV. Conclusion The interaction of the attorney-client and attorney work product privileges with the disclosures required of testifying experts in an increasingly digital discovery process 7

9 continues to present new challenges for litigators, especially in the context of large scale construction disputes. Recent case law demonstrates that, even under amended Rule 26, it is still advisable for an attorney to limit communications with its expert to the facts or data to be considered in forming his opinion. Moreover, it is still advisable to not provide written communications to an expert, to the extent that those communications contain mental impressions, opinions or theories mixed in with the facts or data to be considered. In addition, draft reports should be labeled with the words Privileged/Protected Rule 26(b)(4)(B) Draft Report. Document requests which seek all attorney communications with the expert, as well as those which seek expert reports, should be objected to. Questions at depositions as to an attorney s communications with its expert, as well as the attorney s input as to draft reports, should also be objected to. Similarly, discovery that seeks facts or data that were provided to the expert but which were not considered, should be objected to. If the need arises, argue that the interests of justice do not support disclosure and request an in camera inspection by the court. Alternatively, file a motion in limine requesting that the court determine whether certain arguably privileged material should be produced. Such a motion provides, at the very least, the opportunity to protect the material from production while simultaneously avoiding a preclusion order. Finally, ensure that upon notice of potential claims, the client notifies relevant employees of the need to preserve ESI. Following these suggestions in the context of construction expert discovery is critical, as it is next to impossible to remedy the disclosure of privileged information and the sanctions that can result from failing to comply with electronic discovery rules. 1 Greater Lafourche Port Comm n v. James Constr. Group, L.L.C., , *2-4 (La. App. 1 Cir. 09/21/12), 104 So. 3d In re Chinese Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, at p. 4 (E.D. La., April 8, 2010); Julie Schmit, Drywall from China Blamed for Problems in Homes, USA Today, March 17, 2009; Kate Moran, Homeowners with Toxic Chinese Drywall Have Gotten No Help, and In Many Cases, Have No Resources Left to Keep Their Families Safe, The Times-Picayune, June 7, Fed. R. Civ. P. 26(b)(3)(A). 4 Fed. R. Civ. P. 26(b)(3)(A)(ii). 5 Fed. R. Civ. P. 26(b)(3)(B). 6 Compare Bogosian v. Gulf Oil Co., 738 F.2d 587 (3rd Cir. 1984) and Duplan Co. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir. 1974) (denying production) with Intermedics. Inc. v. Ventritex, 139 F.R.D. 384 (N.D. 1991) and James Julian v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982) (ordering production). 7 Id. 8 See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 665 (3d Cir. 2003); Bogosian, 738 F.2d at 587; Mfg. Admin. & Mgmt. Sys., Inc. v. ICT Grp., Inc., 212 F.R.D. 110, (E.D.N.Y. 2002); Intermedics, 139 F.R.D. at See Reg l Airport Auth. of Louisville v. LFG, LLC, 460 F.3d 697, (6th Cir. 2006)(ordering production of all information provided to testifying experts, even if containing attorney work product); Ecuadorian Plaintiffs v. Chevron Corp., 619 F. 3d 373 (5th Cir. 2010)(work product protection was waived to the extent that any work product was disclosed to testifying expert); Steppe v. Clarendon, 2007 U.S. Dist. LEXIS 83509, at *9 (E.D. Ky. Nov. 9, 2007)(citing the Sixth Circuit s decision in Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006) in holding that all information disclosed to a testifying expert is discoverable, whether or not the material was disclosed inadvertently, and whether or not the expert actually considered the documents in forming his opinion.) 8

10 10 See i.e., Intermedics, 139 F.R.D. at ; N.C. Elec. Membership Corp. v. Carolina Power & Light Co., 108 F.R.D. 283, 286 (M.D.N.C. 1985). 11 Maynard v. Whirlpool Corp., 160 F.R.D. 85, (S.D. W. Va. 1995)(opinion work product shared with testifying expert did not defeat the nearly absolute protection afforded the opinions of counsel.) 12 Fed. R. Civ. P. 26(a)(2)(B)(ii). 13 Fed. R. Civ. P. 26(a)(2)(B)(ii) (2010 Advisory Committee notes). 14 Fed. R. Civ. P. 26 (a)(2)b) (2010 Advisory Committee notes). 15 Fed. R. Civ. P. 26(b)(4)(B). 16 Fed. R. Civ P. 26(b)(4) (2010 Advisory Committee Notes). 17 Id. 18 In re Republic of Ecuador v. Bjorkman, 2013 U.S. Dist. LEXIS 909, *6-7 (D. Col. Jan. 3, 2013). 19 Fed. R. Civ. P. 26(b)(4)(C); United States v. Conagra Grocery Prod. Co., 2013 U.S. Dist. LEXIS 6074 (Jan. 15, 2013). 20 In re Republic of Ecuador, 2013 U.S. Dist. LEXIS 909 at Id. at Id. 23 Fed. R. Civ. P. 26(b)(4)(D). 24 Nat l W. Life Ins. Co. v. W. Nat l Life Ins. Co., 2011 U.S. Dist. LEXIS (W.D. Tex., Mar. 3, 2011). 25 Id. 26 Paradigm Biodevices, Inc. v. Centinel Spine, Inc., 2013 U.S. Dist. LEXIS 7312,, *2 (S.D.N.Y. Jan. 17, 2013). 27 Id. 28 See N. Natural Gas Co. v. Tract No , 2013 U.S. Dist. LEXIS 34958, *30-38 (D. Kansas Mar. 5, 2013)(citing cases finding that an attorney s selection of documents are protected opinion work product, as well as cases holding to the contrary). 29 See Anne Kershaw, Electronic Records Management and Digital Discovery: Practical Considerations for Legal, Technical, and Operational Success: Automated Document Review Proves Its Reliability, ALI- ABA Course of Study (May 17-19, 2007) (course materials available from the ALI-ABA) (stating that reviewing electronic documents for e-discovery can encompass thousands of pages); Applied Discovery: E-Discovery in Depth - Tech Tips, How Many Pages in A Gigabyte? LexisNexis.com, (last visited on Oct. 21, 2011). 30 See Barbara J. Rothstein, Ronald J. Hedges & Elizabeth Z. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges (2007) (explaining multiple media forms can contain electronic information), available at file/eldscpkt.pdf. 31 See Shira A. Scheindlin, E-Discovery: The Newly Amended Federal Rules of Civil Procedure (Matthew Bender & Co. ed., 2006) 32 See Vlad J. Kroll, Default Production of Electronically Stored Information Under the Federal Rules of Civil Procedure: The Requirements of Rule 34(b), 59 Hastings L.J. 221, 221 (2007) (stating that in 1996 only 5% of discoverable information came from an electronic format). 33 See Norman Simon, Electronic Discovery: The Great Metadata Debate, Metropolitan Corp. Couns., May 2008, at 14 (explaining metadata). 34 See generally Zubulake I, 217 F.R.D. 309 (S.D.N.Y 2003); Zubulake IV, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)); See also Carole S. Gailor, In-depth Examination of the Law Regarding Spoilation in State and Federal Courts, 23 J. Am. Acad. Matrimonial L. 71 (2010). 35 Zubulake V, 229 F.R.D. 422, 431 (S.D.N.Y. 2004)(acknowledging the duty of counsel in electronic litigation). 36 See Judicial Panelists Debate Need for Rules Covering Discovery of Electronic Data, 22 Empl. Discrim. Rep. (BNA) 9, at 252 (March 3, 2004). 37 See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2nd Cir. 1999); Zubulake IV, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d. Cir. 1999)) (declaring the litigants' duty to preserve electronic information for litigation). 38 Evans v. Mobile County Health Dep t, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. Jan. 24, 2012). 39 Id. 9

11 40 Id. 41 Day v. LSI Corp., No. Civ TUC-CKJ, 2012 WL (D. Ariz. Dec. 20, 2012). 42 Taylor v. Mitre Corp., 2012 WL (E.D. Va. Nov. 8, 2012) 43 Id. n Id. at *7. 45 Id. at *2 46 Id. at *8. 47 Id. at * Evans, 2012 U.S. Dist. LEXIS at * Id. 50 Id. at * See Fed. R. Civ. P. 26(g)(3); Fed. R. Civ. P. 26(g)(1). 52 Branhaven LLC v. Beektek, Inc., ---F.R.D WL *D. Md. Jan. 4, 2013)( [t]here is no more obvious and critical source of information in the 21 st century than a company s accounts ). 53 See Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 254 (D. Md. 2008)( noting that search terms aimed at locating responsive ESI, rather than identifying privileged or work-product protected documents would not qualify as sufficient privilege review and, therefore, that the party must search for both responsiveness and privilege. ) 54 Fed. R. Evid. 502 (Advisory Committee note) ( Electronic discovery may encompass millions of documents and to insist on record-by-record pre-production privilege review, on pain of subject matter waiver, would impose upon parties costs of production that bear no proportionality to what is at stake in the litigation. (quoting Hopson v. Mayor of Balt., 232 F.R.D. 228, 244 (D. Md. 2005)). 55 Fed. R. Evid. 502(b). 56 Fed. R. Evid. 502(d); Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL (S.D.N.Y. Jan. 7, 2013). 57 Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL (S.D. Ohio Aug. 28, 2012). 58 Id. at *1. 59 Id. 60 Id. 61 Id. 62 Id. 63 Id. 64 Id. at *3. 65 Id. at *3. 66 Id. 67 Id. at * Id. at *4. 69 Id. at * Id. 71 Id. at * Id. at *6. 10