In Flagg v. City of Detroit (E.D. Mich. Mar. 20, 2008) 2008 WL 787061, the Plaintiff, alleging a lax investigation of the murder of a relative and the active concealment of material evidence related to that investigation, sought to discover text messages sent between various City employees and officials.  Defendants sought to quash subpoenas to SkyTel, and, in one Order issued March 20, 2008, the Court denied the Motion to Quash.  Instead, the Court concluded that the relevance (and resulting discoverability) of the text messages depended upon the content of each text message.   The Court then established a procedure for the review of the content of each text message.   Since a text message could theoretically be relevant, but not subject to discovery (due, for example, to a privilege), the Court determined that the review procedure had to incorporate a mechanism for resolving objections to production of each relevant text message.

On that same day, the Court issued an Order establishing the review protocol.  The Court's protocol required the defendants to PIN numbers for the pagers in question so that SkyTel would be able to produce only the text messages sent or received by those particular devices.   The Court then assigned two magistrate judges (the case-assigned magistrate judge, along with a second magistrate judge) to monitor the process of obtaining text messages, review those text messages, and make an initial finding as to whether each text message was discoverable under the standard of Fed. R. Civ. P. 26(b)(1).

The Order setting forth the protocol is included in the Acrobat.com widget embedded below:

If you do not have Flash technology installed in your browser of choice (or this new-fangled beta product from Adobe isn't ready for prime time), you can find that March 20, 2008 protocol Order here.

To hear a discussion about the Protocol Order in Flagg, visit the LegalTalkNetwork and listen to the most recent edition of The ESI Report.

[Via Stark County Law Library Blog and Electronic Discovery Law, both excellent resources]

The American Law Institute-American Bar Association Continuing Professional Education (ALI-ABA)  is offering a live telephone seminar on e-Discovery Developments in Employment Cases.  Since you don't actually have to leave your office to attend, it might fit into your habitually congested schedule.  As an interactive seminar, the program affords the opportunity to submit questions for faculty discussion in advance of and during the event.  The course of study, comprised of 120 minutes of instruction, provides guidance on the e-Discovery issues involved in Employment Cases.

From the Seminar materials:

E-Discovery has led to the explosion of litigation budgets, arcane technological disputes beyond the expertise of most practitioners, and, quite recently, to a client and ethical disaster in the now famous Qualcomm case. We are delighted to have two federal magistrate judges, Paul Grimm from the District of Maryland and James Francis from the Southern District of New York, both of whom have been in the forefront in the upsurge of ESI collateral litigation. For example, Judge Grimm is the author of the Lorraine decision which is a 100 page soup-to-nuts tutorial on the authentication and admissibility of ESI, and Judge Francis is the author of Treppel case where he articulated the legal principles applicable to disputes over the preservation and searching of back-up tapes. The Judges will discuss, analyze, and, most importantly, provide practice tips on ESI retention programs, when and how to implement a litigation hold, spoliation avoidance techniques and avoidance of a Qualcomm disaster, framing Rule 34 discovery requests in light of the new E-Discovery rules (TIF, pdf and when and how to go native), the importance of the Rule 26(f) conference, keyword search terms, the role of experts and lawyers in constructing search protocols in light of O’Keefe and Lundin, techniques to manage the exploding cost of E-Discovery, authentication and admissibility of ESI, attorney-client privilege issues, the proposed new Rule 502, Hopson, and clawback agreements, allocation of costs between the parties, and malpractice avoidance and the Hunton Williams model.

Topics include:

• Implementation of litigation holds
• Spoliation avoidance
• Costs – who pays?
• Keyword search terms, the role of lawyers and experts, and O’Keefe and Lundin
• Attorney-client privilege issues, Hopson, and clawback agreements
• Framing Rule 35 e-discovery requests -- when and how to go native
• Sedona conferences influence

Live Telephone Seminar / Live Audio Webcast Cost: $169
Tuesday, June 24, 2008, 1 - 3 pm EDT
For more information or to register go to www.ali-aba.org/TSNU22/