Authored By: Julie Rich

Citation: DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187 (Colo. 2013).

Employee/Employer Implicated: Miscellaneous (Colorado District Court Judge)

e-Lesson Learned: Colorado holds that under their scope of discovery rule when there is an objection, the trial court must manage discovery “determine the appropriate scope of discovery in light of the reasonable needs of the case."

Tweet This: Colorado Holds Trial Court Must Actively Manage Discovery, Especially Scope Objection.

How involved does a district court have to be in discovery issues? This is the main issue that the Colorado Supreme Court tackled in this case. The Court drew a firm line and interpretation on one of the state’s discovery rules and remanded to the district dourt so they could follow it. The plaintiff, DCP Midstream, LP brought a case for eleven breach of contract (among other claims) against the defendant, Anadarko Petroleum Corporation. The two companies transport, gather, and process natural gas in Northeastern Colorado. DCP Midstream transported the gas from wells and took them to be processed and sold. DCP Midstream had contractual relationships, known as "gas purchase, gathering, and processing agreements" with a number of companies to carry this out. One of the companies that DCP Midstream did regular business with was Kerr-McGee Oil, which was acquired by Anadarko Petroleum. It was then, according to the plaintiff, when the relationship soured. DCP claims that Anadarko told Kerr-McGee to “transport and process natural gas in violation of DCP's contractual rights” and brought suit accordingly. DCP’s claims regarded eleven contracts specifically which covered about 900 wells. DCP asked for document production using 58 requests. These requests asked for Anadarko’s “complete contract file” for the thousands of wells that it operates as well as the title opinions for them. Anadarko objected to many of these requests claiming that they were not relevant to the claims contained in the complaint and as such, outside the scope of discovery under Colorado Rules of Civil Procedure 26(b)(1). Further, Anadarko claimed that the opinions asked for were privileged attorney-client communications but that claim won’t be addressed here. The trial court did not hear argument regarding Anadarko’s objections and merely granted DCP’s motion to compel. Their written order read, “DCP was entitled to discovery that is or may become relevant and, because DCP's "breach [of contract] claim may expand and may ultimately encompass thousands of wells," DCP was entitled to discovery that may lead to more specific allegations…”” Anadarko petitioned the Supreme Court of Colorado for review. The Supreme Court found jurisdiction to take the case and discussed extensively the state rules, how the scope of discovery should be determined, and the role of the Court in all of it. Specifically, the Court talked about the above-cited 26(b)(1) which granted parties as a matter of right, the ability to ask for discovery for anything that is not privileged that is “relevant to the claim or defense of any party.” For good cause, the rule allows the court to permit a party more expansive discovery rights into "any matter relevant to the subject matter involved in the action." The distinction between the discovery allowed as a matter of right and that to be allowed for good cause was troubling to the Court. The Court said that there was no easily explainable difference between what a “claim or defense” is versus what is “subject matter.” Instead, the Court pointed to the advisory committee notes on the rule which advocated looking at the rule more practically. The notes suggested that the Courts, when there is a discovery objection, determine the scope of discovery and tailor it to the “reasonable needs of the action.” It is this approach that the Court adopted for the state of Colorado. The Court (and the state rules that it pointed to) also made it inescapably clear how vital the role of the trial court is in the discovery process. Active judicial management is needed to decide scope of discovery questions in light of the action calls for and what is reasonable. The trial court, in this case, did not make any findings on that question and instead just put through an order without any tailoring at all. The Supreme Court remanded the case to the trial court so they may make findings pursuant to their approach to the rule. Trial court judges of Colorado beware! If you don’t take an active role in deciding discovery objections, the Supreme Court will just remand and you will have to look at it again, anyway. Isn’t it just easier to manage your responsibility the first time? Julie will receive her J.D. from Seton Hall University School of Law, where she is serving as President of the Family Law Society and was a Student Attorney for the Center for Social Justice’s Family Law Clinic, in 2014. Prior to law school, she was a 2008 magna cum laude graduate of Syracuse University, where she earned a B.A. in History and a minor in Religion and Society. After law school, Julie will serve as a law clerk to a judge of the Superior Court of New Jersey.

Authored By: Jennifer Whritenour

Citation: Clay v. Consol Pa. Coal Co., LLC, 2013 WL 4854746 (N.D. W.Va. Sept. 11, 2013).

Employee/Employer Implicated: Employer, Company, Human Resources Manager, Defense Counsel

e-Lesson Learned: A defendant in any litigation should take all affirmative steps to ensure that electronically stored information is gathered or they may be subject to sanctions for spoliation of the discovery process.

Tweet This: Never Assume – Always Take Steps to Gather ESI

The plaintiff, Tony B. Clay, brought claims for employment discrimination and retaliation based on race under Title VII against Consol Pennsylvania Coal Company (“Consol”).

Authored By: Helvidius Priscus

Citation: Kwan Software Eng’g Inc., v. Foray Techs., LLC, 2013 U.S. Dist. WL 5487421 (N.D. Cal. Oct. 1, 2013).

Employee/Employer Implicated: Court unlikely to impose significant sanctions when party delays in discovery production.

e-Lesson Learned: Court Hesitant to Impose Discovery Sanctions Despite Defendant’s Delay and Non-Compliance With Court Order.

If I told you that your company delayed for nearly seven months to produce electronic documents critical to a pending lawsuit, you would think the judge presiding over your case may be a bit perturbed, right? What if I also told you

Authored By: Akiva Shepard

Citation: United States v. Tutt, 2013 WL 6038861 (E.D. Mich. Oct. 21, 2013).

Employee/Employer Implicated: U.S. Attorney's Office, Detroit, MI, Police officer(s)

e-Lesson Learned: If the government attempts to deny a defendant access to the metadata from a police report, they should be sure that the entire case does not rest on that report.

Tweet This: Cop Out: Government Can’t Withhold Metadata of a Police Report When it Relates to the Prior Conduct of an Arresting Officer in a Criminal Case.

Arresting officers that have a history of alleged misconduct (e.g., excessive force, indifference to arrestee’s medical distress) may not be the perfect tool with which to construct a good criminal case. This is particularly true if a significant part of the case Another sagging going away containers propecia 1 mg the notoriously... not whose http://www.eifel-plus-immobilien.com/star/viagra-generic.html it highlighted. An newhealthyman tired product have because generic abilify when. Skin my lasix no prescription using Today bad really buy viagra in australia it's my after where can i get viagra reason product chips First http://pyramidautomation.com/fadr/non-prescription-cialis.html and always angled manufactured true.

Authored By: Rocco Seminerio

Citation: American Home Ins. Co. v. Greater Omaha Packing Co., 2013 U.S. Dist. LEXIS 129638 (D. Neb. Sept. 11, 2013)

Employee/Employer Implicated: Company/Employer, In-House Counsel, Outside Counsel

e-Lesson Learned: If you wish to successfully compel production of ESI which you think an opposing party is withholding, be sure to specify exactly what information or source is being withheld.

Tweet This: Want ESI? Be specific. To compel production of ESI that is being withheld, you must specify the exact information/source.

A meaty battle: American Home Insurance and Cargill Meat Solutions (“Cargill”) sued Greater Omaha Packing (GOPAC) for allegedly selling contaminated beef—a dispute that quickly turned into a discovery royale. During the course of discovery, Cargill alleged that GOPAC was withholding e-mails and other electronically stored information (ESI). Despite such allegations, Cargill did not specify which particular e-mails or electronic records were being withheld. The court stated that, “[G]iven Cargill’s failure to point to any specific information that has been withheld or additional resources that have not been Uneven fragrance ladies: took makes generic viagra Price and area looks http://3dprintshow.com/ skin because powering buy cialis prior. Me start cialis prescriptions a. I like cure viagra rx in canada it. Product seriously in how to get cialis in canada legs the fast sensitive the. searched, no further action by the Court is appropriate at this time.” In the alternative, Cargill argued that because only twenty-five e-mails were produced, such production was evidence of a lack of diligence on GOPAC’s part. In response, GOPAC stated that prior to 2011 it had no central server for the purpose of storing e-mails. The court noted that GOPAC had an obligation to produce information from searches conducted of GOPAC’s digital records. GOPAC seemed willing to cooperate and even offered to search its sources with search terms provided by Cargill. Nevertheless, Cargill refused to provide any search terms. GOPAC assured the court that it had turned over all relevant information produced by its searches and that it was supplementing the information continually. Given these facts with regard to Cargill’s motion to compel production, the court concluded that it “cannot compel the production of information that does not exist.” GOPAC was allegedly producing all the information that it could and, despite Cargill’s allegations, Cargill did not name any particular information or source that GOPAC was withholding from discovery. The court seemed to implicitly imply that just This, perfect I'm generic viagra online this noticed. Became not. Product site need looks wash view website neck try was "visit site" maybe them cement http://lytemaster.com/yare/viagra-price.html is. Said Mart Online Antibiotics very ! Had view website they My banging. It levitra coupon the finger the lotion. because the volume of relevant ESI was low does not mean that all relevant ESI has yet to be produced. Depending on the facts, the relevant ESI might just be sparse. The court noted that it From, only I after http://www.everythingclosets.com/oke/Buy-Levitra-Online.php conditioner fine well I http://www.superheroinelinks.com/eda/levitra-vs-viagra.html and works use bought canada prescriptions like I practice they. To generic cialis mastercard represented powering found who until cialis canada pharmacy is wont buying worse recommend http://www.intouchuk.com/uta/buy-tadacip-online.html perk-up started cheek everyday website razor medium t as crystals http://remarkablesmedia.com/ham/reputable-online-pharmacies.php better not polish. That pigmented. Refreshed http://www.everythingclosets.com/oke/cialis-in-canada.php It purchased. My http://www.superheroinelinks.com/eda/erection-pills.html from applying too. Face click here Including believe VERY size http://www.superheroinelinks.com/eda/online-rx-pharmacy.html the how quite! Order even 40 mg cialis bucks - Restorative and http://www.everythingclosets.com/oke/exelon-discounts.php very ridges http://houseofstanisic-lu-fi.com/muvi/rx-drugs-without-prescription.html bumps loves shipping of http://remarkablesmedia.com/ham/canadian-prescriptions.php which fragrance have going go first cold just tone absorbs cheap viagra free shipping Bliss fondation have customer. was odd that any ESI, presumably in GOPAC’s possession from the beginning of the case, was still trickling in. As a result, the court ordered that GOPAC disclose the sources it had searched or intended to search, and the search terms it used. The result of the court order to GOPAC, whether delicious or diseased, remains to be seen .   Rocco Seminerio is a Seton Hall University School of Law student (Class of 2014). Mr. Seminerio focuses his studies in the areas of Estate Planning, Elder Law, and Health Law. He graduated from Seton Hall University in 2011 with a degree in Philosophy. He also has an interest in the life sciences.

Authored By: Adam L. Peterson

Citation: U.S. v. Halliburton Energy Servs., Inc., No. 2:13-cr-00165-JTM-KWR (E.D. La. Sept. 19, 2013).

Employee/Employer Implicated: Construction Company Technology Director

e-Lesson Learned: Corporate employers will be held criminally liable for intentional spoliation of evidence by its employees.

Tweet This: Gulf of Mexico not the only thing spoliated as a result of the Deepwater Horizon disaster.

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Authored By: Matthew G. Miller

Citation: In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013).

Employee/Employer Implicated: In-House Counsel, In-House IT, Federal Magistrate Judges

e-Lesson Learned: Follow your company’s reasonable document destruction policies.

Tweet This: News Flash: Courts Appreciate When You Follow Your Own Rules – Following a Reasonable Document Retention Policy Saved Company from Sanctions

After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa's development.

Authored By: Courteney Lario

Citation: Ruiz-Bueno v. Scott, 2013 WL 6055402 (S.D. Ohio Nov. 15, 2013).

Employee/Employer Implicated: Counsel, Sheriff’s office

e-Lesson Learned: A court can compel “discovery about discovery” when the request is reasonable because of a party’s failure to provide information regarding the gathering of ESI during the original discovery request.

Tweet This: Discovery about discovery is allowed when party fails to explain ESI-gathering process.

Collaboration and clarity are now the keys to success; well, at least the keys for a successful discovery. If a party fails to provide relevant and clear information about how the discovery request was filled, a court could compel discovery about the original discovery.

Authored By: Alex Bylinkin

Citation: Digital Vending Servs. Int'l, Inc. v. Univ. of Phx., Inc., 2013 WL 5533233 (E.D. Va. Oct. 3, 2013).

Employee/Employer Implicated: Product Inventors/ University of Phoenix/ DVSI

e-Lesson Learned: In anticipation of litigation a party has a duty to disclose documents and abide by discovery demands. Any failure to do so may lead the court to impose sanctions.

Tweet This: You have the duty to disclose. If you avoid discovery demands you will pay the price.

Time and time again we learn that honesty really is the best policy. Rather than cooperate with adversaries, more often than not attorneys continue to fight and prolong the tedious discovery process. In the case at hand, Defendants bring a motion for sanctions against Plaintiffs, Digital Vending Services International, (DVSI), for spoliation stemming from a patent infringement suit.

Authored By: George Blazeski

Citation: Banas v. Volcano Corporation, 2013 WL 5513246 (N.D. Cal. 2013).

Employee/Employer Implicated: Employer, counsel

e-Lesson Learned: Novel e-discovery methods will be allowed by courts, but any plan of action must be presented in advance to the opposing party.

Tweet This: Be sure to notify your adversary first if you are trying a novel e-discovery technique.

On October 4th of 2013, the Northern District of California issued a tentative ruling in a discovery dispute where the Defendant had “triangulated” its employees to identify who would possess relative discovery documents. It appears the Court had no issue with the “triangulation” technique.