Ralph Losey On Sedona's New World of Cooperation

September 23, 2015

Ralph Losey is a partner at a law firm in Orlando who is one of the country's best experts on electronic discovery issues.   He authored one of the most widely cited documents to come out of Sedona, Mancia v. Mayflower Begins a Pilgrimmage to the New World of Cooperation, available at:

https://thesedonaconference.org/node/919

 

Losey discusses Judge Grimm's decision in Mancia,  the first to endorse the Sedona Proclamation on Cooperation, and other cases that followed soon after the issuing of the Proclamation in 2009 that also directed attorneys to follow its guidelines.  

 

Mancia v. Mayflower -  this decision discusses  the requirement under FRCP 26(g) to make a reasonable inquiry before signing a document request.    Without a specified damage range, the Court can't perform an analysis under 26(b)(2)(C) to decide whether or not a request is too burdensome or overbroad.  

 

Aguilar v. Immigration  and Customs Enforcement  - the U.S. District Court for the Southern District of New York, noting that "metadata is the new black", held that parties must discuss metadata issues early in the case.  The Court invoked the Sedona Proclamation in observing that  parties must make the tough choices, not the courts.  

 

Gipson v. Southwestern Bell Tel. Co. -  the federal court in Kansas invoked the Sedona Cooperation Proclamation in holding that many motions on minor discovery issues were not necessary, especially in a case where some  parties were pro se and hundreds of motions were filed.

 

Covad Communications v. Revonet - Judge Facciola's  noted that Rule 26(f) is designed to prevent disputes over minor issues like the form of production.    Judge Facciola ordered the production of emails and other ESI in electronic form, not paper, but ordered the plaintiffs to cover the cost of the defendants' production since they did not specify the form at the outset.

 

S.E.C. v. Collins & Aikman Corp.  - In a case in which the S.E.C. produced 1.7 million documents in 36 different Concordance database, despite the fact that it had already identified a smaller set of relevant documents, Judge Scheindlin referenced an advisory note to FRCP Rule 34, which requires production of documents in different categories or as they are kept in the course of business, and decided that in most cases the documents should be organized by category and that the provision of Rule 34 prohibits data dumps.  She also stated that an attorney's determination of the relevancy of a document does not constitute work product, and that requiring a party to search through 10 million pages to find documents already identified by the producer constitutes undue hardship under Rule 26.  The S.E.C. had to produce some of the relevant documents and also devise search protocols within 20 days. 

 

William A. Gross Const. Associates v. American Mfrs. Mut. Ins. Co. - Judge Peck issued a wake-up call on the need for quality control and cooperation with opposing counsel on determining keywords to find ESI.   One of the parties refused to agree to search terms that would have required them to produce all of the documents in their possession (regardless of the construction project) but failed to propose alternate search terms.  The court selected the keywords, but warned the parties that they must cooperate to select keywords with input from the main custodians and after doing quality control to account for false positives.  

 

Judge Facciola, in Newman v. Borders  declined a request for a 30(b)(6) deposition on the retention of ESI, in a case where it appeared that costs would exceed the amount of any potentional recovery, and directed that an affidavit be prepared instead.  

 

Ford Motor Co. v. Edgewood Properties, Inc. -  Despite the fact that the requesting party made an initial request for the original native data with all metadata, its failure to object to a TIFF production with limited metadata unitl after it was complete meant that it had waived the right to object. 

 

Dunkin Donuts v. Grand Cen. Donuts -  The Sedona Cooperation Proclamation was invoked by the Court in ordering the parties to meet and confer under 26(f) to agree upon a search protocol and specified that different search terms could be used for different custodians.  

 

Wells Fargo Bank v. LaSalle Bank - the Court declined to consider a dispute over a search for ESI on back-up tapes because motions were filed 4 months after the discovery deadline, and only 2 months before the trial.   It referenced the Sedona Cooperation Proclamation in pointing out the necessity of resolving such problems at the outset of litigation.  

 

In re Direct Southwest Fair Labor Standards Act Litigation -  the U.S. District Court for the Eastern District of Louisiana instructed the parties that a dispute about the search terms should be resolved at the beginning of the discovery process and not at the end.  The failure to do this meant that a party could not avoid a discovery request on the basis of it being too burdensome.  

 

Capitol Records v. MP3tunes, LLC -  after the Court directed the attorneys to cooperate as per the Sedona Proclamation, and they still failed to reach a resolution and continued to detail their positions in letters with the Court, the judge issued an order on some issues and made them meet and confer on others. 

 

 

 

 

 

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