Federal rule changes impose new duties to maintain computerized evidence

By Marc Rosenberg

Federal courts have changed discovery rules that will require parties to follow stringent standards for retaining and producing electronic evidence. The new federal rules are a harbinger of similar changes to discovery rules in state courts.

On December 1, 2006, new Rules of Civil Procedure related to Electronic Discovery will take effect in the federal courts. Most of the major changes related to e-discovery will appear in Fed. R. Civ. P. 26(a)(1)(B), 26(b)(2), 26(b)(5), 26(f), 33, 34, 37, and 45.

The new rules have the potential to create serious new demands on attorneys and their clients, particularly corporate or governmental entities. Violation of the new rules could lead to stiff monetary fines, exclusion of evidence, and adverse jury instructions.

For example, for Rule 26(a) initial disclosures, parties now will have a duty to disclose where electronically stored information might be stored. E-discovery includes such things as individual computers, main network storage units, and backup tapes.

Therefore, at the very start of a new federal lawsuit, the attorney will have to speak with the client’s IT person to find out what information is electronically stored, how it is stored, how it is maintained, and where it is kept. Parties and their counsel will need enough expertise in the technical aspects of computers and data storage and retrieval to meet these new obligations.

In addition, the attorney must have the client issue “litigation hold” at the beginning of the case and periodically while the case is pending. This litigation hold would require a corporate client to instruct anyone using its computers or other electronic devices not to delete or destroy any potential evidence in the case.

The new rules do contain a “safe harbor” provision that may protect a party from sanctions for failing to provide material lost in the routine operation of a party's computer system. However, if existing federal case law is any indication of things to come, federal courts generally will not excuse attorneys’ or clients’ mistakes or ignorance of the new rules.

New Rules 33 and 34 now clearly require that electronic evidence be produced, and they now permit the requesting party to request the electronic format in which the other side must produce it. For cases in which production of the electronic evidence is unusually expensive, the rules set out procedures for the responding party to ask the court to shift the cost of production to the requesting party. Also, since discovery now often could entail production of huge amounts of electronic data from a party’s computer systems, the rules now include a procedure to follow if electronically stored privileged documents are produced inadvertently.

Many of the new rules’ provisions derive from the holdings in one case, Zubulake v. UBS Warburg, LLC, in the Southern District of New York, which generated six different published opinions. See 217 F.R.D. 309, 230 F.R.D. 290, 216 F.R.D. 280, 220 F.R.D. 212, 229 F.R.D. 422, and 382 F. Supp.2d 356. Several later federal-court cases also clarify what effects the new rules may have on litigation. So while the new rules do not formally take effect until December, case law that imposes such e-discovery obligations already is evolving and could affect litigation that is pending now.

County not liable for murder by released sex offender

By Michael A. Patterson

Where a statute that allows but does not require a county to notify citizens of a sex offender's release into the community, the county is not liable for the sex offender's crime after his release, the Washington Supreme Court has held.

Lee Smart attorneys Charles P.E. Leitch, Daniel G. Lloyd, and I defended Mason County in Osborn v. Mason County. The parents of Jennie Osborn, a 15-year-old girl, sued Mason County for Jennie’s rape and murder by Joseph Rosenow, a released sex offender. In 2000, Rosenow was released from prison and registered with the county as a sex offender. As a state statute authorizes, Mason County prepared, published, and posted a notice on the County's website. Rosenow was on probation with the State Department of Corrections for prior sex offenses at the time, and he was under the Department of Corrections’ supervision.

On February 24, 2001, Rosenow murdered Jennie. He later pleaded guilty to murder. Until the time of the murder, the Osborns had had no contact of any kind with the County regarding Rosenow. Nevertheless, the Osborns sued both the State Department of Corrections and Mason County. The Osborns alleged that the Department of Corrections negligently supervised Rosenow and that the County was negligent in meeting the statutory requirements when notifying the community about Rosenow.

Before trial, the Department of Corrections settled out of the case for $1.75 million. On behalf of the County, we moved for summary judgment of dismissal. We contended that the notification statute permitted the County to notify the community about sex offenders but created no duty to do so. We also argued that the lack of any relationship between the Osborns and the County precluded any legal duty to them specifically. The intent of the statute's language that said that no individual had a duty to provide such notification was to encourage municipalities to provide notification voluntarily without the risk of liability for doing so. Furthermore, under the public-duty doctrine, a county could be liable only when the duty breached was owed individually, rather than to the public in general (“a duty to all is a duty to no one”).

The trial court denied our summary judgment motion, concluding that the County somehow owed a specific duty to these plaintiffs, and ordered the County to proceed to trial. We sought discretionary review before Division Two of the Court of Appeals, which is a request that the appellate court take the unusual step of accepting review of the case even though the case has not yet concluded at the trial level.

The Court of Appeals accepted review, but after considering the merits, it affirmed the trial court’s ruling. The Court of Appeals agreed with us that the notification statute imposed no duty to notify the public about a sex offender. However, the court held that the “rescue doctrine” created potential liability because the County undertook to notify the community about Rosenow and therefore assumed a duty to the Osborns, considering the County's contacts with other members of the community about Rosenow.

We petitioned the Washington Supreme Court for review. The Supreme Court accepts review only rarely, but it granted our petition and agreed to review the Court of Appeals’ decision.

The Supreme Court reversed the Court of Appeals' decision by a 7-2 vote and ordered dismissal of the action against the County. The Court recognized that Mason County never promised to warn the Osborns of Rosenow. The Court agreed with us that, even though the sex-offender notification statute allowed for the possibility of notification, it created no duty to do so. The Supreme Court also held that, because the County had no authority to control Rosenow, it could not be liable for failing to supervise him. The Court agreed with us that the law imposed no duty on Mason County, and the common law did not recognize any duty either.

Around The Firm

In Black v. Jerry's Jewelry & Loans, Inc., Joel E. Wright and Melisa K. Thompson won summary judgment of dismissal in favor of a pawnshop. Burglars broke into plaintiff’s home and stole jewelry, which they later pawned at various pawn shops. Plaintiff notified the pawnshops of her stolen items. She sued the pawnshops, claiming violation of pawnshop reporting statutes and the Consumer Protection Act, replevin, and assault. She claimed she was injured when she tried to take what she thought was her jewelry out of the store, and the store owner grabbed her wrist and held it until the police arrived. After viewing the videotape of the whole incident, neither the police nor the court was persuaded that any assault occurred. The court also concluded that the pawnshop did not violate reporting statutes, which require pawnshops to take note of possible stolen items only when a police agency notifies them.

Michelle A. Corsi won partial summary judgment in a real-estate malpractice case, Williams v. Van Dorm Realty. The buyers sued the sellers and real estate agents involved in the transaction for negligent misrepresentation regarding several alleged defects with the house. The court agreed with Michelle that plaintiffs lacked proof of any negligent or intentional concealment of several of the alleged defects and dismissed those claims. The court also dismissed plaintiffs’ Consumer Protection Act because no proof of a pattern or practice of deception existed.

Patricia K. Buchanan and Daniel G. Lloyd won summary judgment in Anderson v. Lake Washington School District. A school bus struck the plaintiff bicyclist in a busy intersection. Plaintiff claimed neurological and psychological trauma and alleged that the accident caused him to lose his dental practice. The court agreed with Pat and Dan that the bus driver followed all rules of the road and that plaintiff had no evidence to support his theories and dismissed the action.

Michael A. Patterson, Charles P.E. Leitch, and Dan Lloyd won a defense verdict in Barbee v. Jefferson County, a three-week federal civil-rights jury trial. Plaintiff was an inmate who developed a rare staph infection in his hand while incarcerated as a pretrial detainee. Doctors had to perform multiple surgeries and amputated one of plaintiff’s fingers to resolve the infection. A long hospitalization further placed plaintiff's health at grave risk. He sued Jefferson County and the jail superintendent individually, claiming that both were deliberately indifferent to his serious medical needs, claiming $10 million in damages. He rejected a $50,000 offer of judgment early in the case. After hearing testimony from multiple lay and expert witnesses, the jury returned a unanimous defense verdict.

Charles P.E. Leitch and Daniel G. Lloyd won summary judgment in Bush v. Tacoma School District, a premises-liability case. The plaintiff was a student’s mother, who claimed she slipped on a pool of water in the basement area of a Tacoma elementary school. She suffered a fractured tibia, which required three surgeries. The trial court agreed with the defense, finding that the District had no notice of any alleged dangerous condition, and dismissed the action.

Mike Paterson, Duncan K. Fobes, Philip A. Gigler, and Dan Lloyd won summary judgment of dismissal in Gustason v. Peninsula Regional Support Network. Plaintiffs claimed that they were denied culturally competent mental health care by the State and Peninsula Regional Support Network when mental health counseling was offered to hearing impaired individuals via a sign language interpreter. The court agreed with the defense that, among other things, the statute of limitations for one of the plaintiffs had run and that no duty to provide out-of-state long-term residential care existed for the other.

Charles Leitch and Brian P. Waters won an arbitration in Heritage v. Tacoma School District. Plaintiff was a paraplegic who was struck in his wheelchair by a school bus after he entered a crosswalk as the bus was turning. Plaintiff alleged that he suffered reduced arm strength and damage to his wheelchair. The arbitrator agreed with the defense that there was a lack of credible evidence to establish liability or damages and found that the District had not violated any duty of care.

August G. Cifelli was successful in Drippon v. Transportation Ins. Co., a three-arbitrator UIM arbitration. Plaintiff was injured while operating a tow truck. He settled with the liability carrier and pursued a UIM claim, alleging permanent disability and more than $500,000 in damages. The L & I liens alone totaled nearly $100,000. Gus contested the nature and extent of injuries and won a net award of only $5,000.