1) The document discusses recent cases related to electronic records management (ERM) procedures and preservation of electronically stored information (ESI). 2) It provides examples of cases where proper ERM procedures were valuable, as well as some cases where failures to follow procedures resulted in sanctions. 3) The document also summarizes discussions on potential amendments to rules around preservation duties and spoliation sanctions.

1. Cohasset Associates, Inc.
NOTES
ERM Case Law: The Latest
News, Trends, and Issues
Kenneth J. Withers, Esq.
The Sedona Conference®
Value of RIM procedures
 Micron Tech., Inc. v. Rambus Inc., 645
F.3d 1311 (Fed. Cir. 2011); Hynix
Semiconductor v. Rambus Inc., 645 F.3d
1336 (Fed Cir 2011)
(Fed. Cir.
 Intentional destruction of ESI does not
necessarily mean “bad faith”
Session 9 / May 7, 2012 2
Value of RIM procedures
 More examples:
 Spanish Peaks Lodge, LLC v. Keybank
National Association, 2012 WL 895465
(
(W.D.Pa. Mar. 15, 2012)
, )
 Viramontes v. U.S. Bancorp, 2011 WL 291077
(N.D. Ill. Jan. 27, 2011)
 Northington v. H&M Int’l, 2011 WL 663055
(N.D. Ill. Jan. 12, 2011)
Session 9 / May 7, 2012 3
2012 Managing Electronic Records Conference 9.1

2. Cohasset Associates, Inc.
NOTES
Value of RIM procedures
 More examples:
 Benson v. Sanford Health, 2011 WL 1135379
(D.S.D. Mar. 25, 2011)
 Jacobeit v Rich Township High School
v.
District, 2011 WL 2039588 (N.D. Ill. May 25,
2011)
 Medeva Pharma Suisse A.G. v. Roxane
Laboratories, Inc., 2011 WL 310697 (D.N.J.
Jan. 28, 2011)
Session 9 / May 7, 2012 4
Value of RIM procedures
 Some BAD examples:
 Voom HD Holdings, LLC v. Echostar Satellite,
L.L.C., 2012 WL 265833 (N.Y. Sup. Ct. App.
Div. Jan. 31, 2012)
, )
 Bryden v. Boys & Girls Club of Rockford, 2011
WL 843907 (N.D. Ill. Mar. 8, 2011)
 Eon-Net LP v. Flagstar Bancorp, 653 F.3d
1314 (Fed. Cir. 2011)
Session 9 / May 7, 2012 5
What triggers the duty of
preservation?
 Micron Tech., Inc. v. Rambus Inc., 645
F.3d 1311 (Fed. Cir. 2011); Hynix
Semiconductor v. Rambus Inc., 645 F.3d
1336 (Fed Cir 2011)
(Fed. Cir.
 Duty arises when party sets on course that
reasonably can be expected to lead to
litigation
Session 9 / May 7, 2012 6
2012 Managing Electronic Records Conference 9.2

3. Cohasset Associates, Inc.
NOTES
What triggers the duty of
preservation?
 In re Delta/Airtran Baggage Fee Antitrust
Litig., 2011 WL 915322 (N.D. Ga. Feb. 22,
2011)
 Department of Justice investigation does not
necessarily trigger duty to preserve
Session 9 / May 7, 2012 7
Scope of the duty to preserve
 Gaalla v. Citizens Med. Ctr., 2011 WL
2115670 (S.D. Tex. May 27, 2011)
 No general duty to preserve backup media
 Genger v TR Investors LLC 2011 WL
v. Investors, LLC,
2802832 (Del. Supr. July 18, 2011)
 No general duty to preserve “unallocated free
space”
Session 9 / May 7, 2012 8
Proportionality in preservation
 Pippins v. KPMG, LLP, 2011 WL 4701849
(S.D.N.Y. Oct. 7, 2011); 2012 WL 370321
(S.D.N.Y Feb. 3, 2012)
 Court orders preservation of 2 500 hard drives
2,500
at a cost of $1.5 million
 Defendant failed to make case for
proportionality
Session 9 / May 7, 2012 9
2012 Managing Electronic Records Conference 9.3

4. Cohasset Associates, Inc.
NOTES
Supervising employees
 Gentex Corp. v. Sutter, 2011 WL 5040893
(M.D.Pa. Oct. 24, 2011)
 Sanctions appropriate for individual
defendants who intentionally destroyed
electronic evidence, but defendant
corporation not liable
Session 9 / May 7, 2012 10
Supervising employees
 E.I. Du Pont De Nemours and Co. v. Kolon Indus.,
2011 WL 1597528 (E.D. Va. Apr. 27, 2011)
 Defendant instructed by the federal government to keep its
investigation of the matter as limited and confidential as
possible
 E.I. Du Pont De Nemours and Co. v. Kolon Indus.,
2011 WL 2966862 (E.D. Va. July 21, 2011)
 Intentional and bad faith deletion of relevant files and
emails by key employees justified imposition of adverse
inference instruction
Session 9 / May 7, 2012 11
7th Circuit Pilot Program
 Principle 2.02 - E-Discovery Liaison(s)
 In most cases, the meet and confer process
will be aided by participation of an ediscovery
liaison(s) as defined in this Principle. In the
( ) p
event of a dispute concerning the
preservation or production of ESI, each party
shall designate an individual(s) to act as
ediscovery liaison(s) for purposes of meeting,
conferring, and attending court hearings on
the subject.
Session 9 / May 7, 2012 12
2012 Managing Electronic Records Conference 9.4

5. Cohasset Associates, Inc.
NOTES
7th Circuit Pilot Program
 …[T]he e-discovery liaison(s) must:
 (a) be prepared to participate in e-discovery dispute
resolution;
 (b) be knowledgeable about the party's e-discovery efforts;
 (c) be, or have reasonable access to those who are,
familiar with the party s electronic systems and capabilities
party's
in order to explain those systems and answer relevant
questions; and
 (d) be, or have reasonable access to those who are,
knowledgeable about the technical aspects of e-discovery,
including electronic document storage, organization, and
format issues, and relevant information retrieval
technology, including search methodology.
Session 9 / May 7, 2012 13
Possible rule amendments?
 Bright line rule defining the trigger or
scope of the duty of preservation unlikely
 Rules can’t regulate behavior that occurs
before courts have jurisdiction over the parties
 Plenty of proposals on the table; e.g.
No duty of preservation before lawsuit is filed
Duty limited to refraining from obstructing justice
Session 9 / May 7, 2012 14
Possible rule amendments?
 Possible new Rule 37(g) or amended Rule
37(e)
 Part One allows only “remedial” sanctions,
e.g.:
eg:
Further discovery
Costs
 Part Two allows severe sanctions only on
findings of bad faith and severe prejudice
Session 9 / May 7, 2012 15
2012 Managing Electronic Records Conference 9.5

6. Cohasset Associates, Inc.
NOTES
Possible rule amendments?
 Part Three spells out factors for spoliation
sanctions, including:
(A) the extent to which the party was on notice that litigation
was likely and that the information would be discoverable
(B) the reasonableness of the party’s efforts to preserve the
information,
information including the use of a litigation hold and the
scope of the preservation efforts
(C) whether the party received a request that information be
preserved, the clarity and reasonableness of the request, and
13
— if a request was made — whether the person who made
the request or the party offered to engage in good faith
consultation regarding the scope of preservation
Session 9 / May 7, 2012 16
Possible rule amendments?
 Part Three (continued):
(D) the party’s resources and sophistication in matters
of litigation
(E) the proportionality of the preservation efforts to any
anticipated or ongoing liti ti
ti i t d i litigation
(F) whether the party sought timely guidance from the
court regarding any unresolved disputes concerning the
preservation of discoverable information
Session 9 / May 7, 2012 17
New Sedona publications
 The Sedona Conference® Primer on
Social Media (2012)
 The Sedona Conference® Commentary on
Ethics & Metadata (2012)
 The Sedona Conference® Commentary on
Proportionality in Discovery (forthcoming
in 2012)
Session 9 / May 7, 2012 18
2012 Managing Electronic Records Conference 9.6

7. Cohasset Associates, Inc.
NOTES
New Sedona publication
 The Sedona Conference® International
Principles on Discovery, Disclosure & Data
Protection: Best Practices,
Recommendations & Principles for
Addressing the Preservation & Discovery
of Protected Data in U.S. Litigation
(European Union Edition, December 2011)
Session 9 / May 7, 2012 19
New Sedona website
 www.thesedonaconference.org
 Individual user profiles
 Online registration for events and
activities
 Flexible Working Group membership
 More online interactivity and dialogue
Session 9 / May 7, 2012 20
2012 Managing Electronic Records Conference 9.7