From Ralph Losey’s e-Discovery Team:

A new opinion by the Chief Bankruptcy Judge in Manhattan, Arthur J. Gonzalez, illustrates what can happen when lawyers over-delegate to their client the lawyers’ duty to find and collect digital evidence. In re A & M Florida Properties II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010). This case, and countless others just like it, remind me of the old phrase, let George do it. No, this has nothing to do with George Socha. I’m referring to a popular expression in the 1950s and 60s, one that I heard a lot in my family, where every other male was named George. Let George Do It was a popular radio show in the forties and fifties. It was about a detective named George Valentine where all of his clients came from reading a newspaper ad saying:

Personal notice: Danger’s my stock in trade. If the job’s too tough for you to handle, you’ve got a job for me. George Valentine.

This popular show led to the catch phrase, let George do it, meaning to let another person perform an odious task for you; kind of a slacker’s credo. That’s what appears to have happened in In re A & M Florida Properties II, LLC.

e-Discovery Team – What Can Happen When Lawyers Delegate Their e-Discovery Duties to a Client

And with that, I’m going on vacation until the end of next week.  I will leave you in Gabe’s capable hands.

From Bow Tie Law’s Blog:

In the epic legal battle over patents and floppy disk controller defects dating back to the 1980s and 1990s, the Defendants brought a motion to compel the Plaintiff, who was an employee of his own company, who did not regularly testify as an expert on the company’s behalf, to prepare an expert report for the Defendants. The Defendants also wanted the Plaintiff to submit to an additional four days of deposition testimony.  Phillip M. Adams & Assocs., L.L.C. v. Fujitsu Ltd., 2010 U.S. Dist. LEXIS 27022, at *10-11 (D. Utah Mar. 20, 2010).

The Plaintiff had already testified for seven days.

The Defendants argued that since the Plaintiff had testified in seven other lawsuits as an expert witness, he was required to submit an expert report.  Adams, at *12.  However, in only one of those cases was the Plaintiff’s employer a party in the lawsuit.

Bow Tie Law’s Blog: When is an Employee Expert an Expert Who Must Prepare a Report?

From Practical Ediscovery:

Irwin v. Onondaga County Resource Recovery Agency, A.T., — N.Y.S.2d —, 2010 WL 462948 (N.Y.A.D. 4 Dept., Feb. 11, 2010)

Petitioner Irwin noticed that a local government agency used a picture of Irwin in an email “news blast.” He claimed the agency used the photo without his permission, and sought modest compensation for the use of the photo. When the agency refused, Irwin sought information about the agency’s collection of digital images under New York’s Freedom of Information Law (“FOIL”).

The request sought “[a]ll computer records that are associated with published [photographs] in all [of the agency's] publications, including [Web site] and e-mail activities, for the years 2005, 2006, and 2007.” The agency produced some photos that were of reduced quality and “bereft” of metadata.

Irwin filed a court action to compel, among other things, the disclosure of the metadata associated with the requested records. The trial court denied Irwin’s petition, and Irwin sought review with the appellate court. On appeal, the court amended the judgment to order the production of the metadata.

The court emphasized that the decision was limited to its facts. But the case is worth reading because of its concise yet thorough explanation of the various types of metadata and their discoverability.

Practical Ediscovery: Court orders disclosure of metadata under New York’s Freedom of Information Law

From E-Discovery Bytes:

Federal district court judge Shira Scheindlin — who penned five seminal opinions in the case of Zubulake v. UBS Warburg — has weighed in again on a litigant’s duty to preserve electronically stored information (“ESI”) relevant to pending or reasonably foreseeable litigation. She even titled her opinion, “Zubulake Revisited: Six Years Later.”

In Pension Committee of University of Montreal Pension Plan v. Banc of American Securities, LLC 05-CIV-9016, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010), Judge Scheindlin sanctioned thirteen plaintiff investors for their failure to preserve ESI.  Along the way, she sketched a general framework for determining how much to blame a litigant for its failure to preserve ESI and what sanctions to impose when a litigant’s conduct is blameworthy.

But the opinion will be more than just a warning. If Zubulake‘s reception is any guide, the analytical framework laid out in Pension Committee will greatly influence judicial thinking about the discovery of ESI.  Practitioners would be wise to be familiar with its contents.

E-Discovery Bytes – Author of the Zubulake Opinions Decides New E-Discovery Case, Chiding Those With A “Pure Heart and Empty Head”

From eLaw Exchange via Michael Arkfeld’s Electronic Discovery and Evidence:

(D)efendant argued that the plaintiff was responsible for the costs for producing electronic data. In a review of New York law the Court found that the producing party had the obligation to produce ESI and the cost would be borne by the producing party, including the review cost cost. However, the Court noted that the production of “deleted” ESI may lead to a different result…

Electronic Discovery and Evidence – New York State Rules that Electronic Discovery Production Costs Must Be Borne by Producing Party

eLaw Exchange – MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2010 NY Slip Op 50199U, 10 (N.Y. Sup. Ct. Jan. 14, 2010)