For The Defense, February 2012 - DRI Today

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Port in the Storm, from page 17 and apply to certain matters designated as complex cases. In designated cases, parties are required to submit, early in the matter, a “protocol and schedule for electronic discovery, including a brief description of any disputes regarding the scope of electronic discovery.” This Joint E- Discovery Submission requires counsel to identify specifically any “unresolved issues,” including those relating to preservation; search and review; source(s) of production; form of production; identification and inadvertent production of privileged material; and cost allocation. Interestingly, it presumes that the parties “have discussed the obligation to preserve potentially relevant electronically stored information and agree to the following scope and methods for preservation, including retention of electronic data and implementation of a data preservation plan; identification of potentially relevant data; disclosure of the programs and manner in which the data is maintained; identification of computer system utilized; and identification of the individuals responsible for data preservation.” The order calls for information on the value of the case and the specific anticipated costs of e- discovery, and even inquires as to “the extent to which the parties have disclosed or have agreed to disclose the dates, contents, and/or recipients of ‘litigation hold’ communications.” These developments highlight the three “c”s of e- discovery law evolution—complex, controversial, and constant. The mandate of DRI’s Electronic Discovery Committee is to be a port in this storm of change for all litigants and defense practitioners seeking guidance in these difficult areas. To that end, in this edition of For The Defense, the committee is pleased to present series of articles that look critically at several of these issues and provide helpful guidance. In “Controlling E- Discovery: Drafting Effective Records Management Policies,” DRI Electronic Discovery Committee Vice Chair John J. Jablonski and Phillip J. Duffy address the elements of an effective and defensible corporate records management program, a theme they lectured on at DRI’s 2011 Annual Meeting. The article discusses how a well documented and thoughtful business approach to the retention, management, and destruction of business records is often the best defense to allegations of spoliation when opponents seek sanctions for missing documents or electronically stored information. In “Company- Enabled Technologies, Social Networking Platforms, and Mobile Devices: Managing Electronic Discovery and Compliance Risks,” our committee’s publications chair, John Martin, and publications vice chair, Heyward Bonyata, focus on how new media and media sources like SharePoint, social networking websites, e-mail, text messages, Twitter and the “cloud” have permanently changed the way today’s employees collaborate, create, store, and instantly transmit ideas, images, and information. The article discusses how it is essential to understand both the tremendous value and significant legal risk embodied in the new technologies, and ways to mitigate those risks. Finally, in their piece entitled “Local Rules, Procedures and Model Orders: The Progress of E- Discovery,” Kym Kochis and Frank McKnight look at the requirements and restrictions, pronouncements, and penalties that courts and judges have enacted or recommended regarding e- discovery practice at the local level, in the form of local rules, recommended or required procedures, and model orders. The article explores the different approaches taken to provide guidance on this subject, including requirements mandating early discussion and negotiation, restrictions on the scope of e- discovery and guidance on cost-shifting As always, you can find additional guidance in articles published by committee members and guest experts in future editions of DRI’s In-House Defense Quarterly, as well as the Electronic Discovery Committee’s own newsletter, E-Discovery Connection. From our numerous informative publications, to our series of topical webinars given throughout the year, to our advocacy among the leading e- discovery organizations and rule making bodies, DRI’s E- Discovery Committee is a dynamic, relevant, and respected group of professionals dedicated to providing a venue for DRI members and their clients to collaborate with and support each other in e- discovery matters. If you are not already a member of the committee, I invite you to join and take advantage of the tremendous opportunities and resources that membership provides. Please contact me, John Jablonski, or our membership chair or vice chair, Tom Jones and Dave Walton, if you are interested in membership or in becoming a more active member. And please help us spread the word throughout the DRI community and especially to your colleagues who are not yet DRI members. Enjoy the articles that follow. —MSS Premises, from page 50 sities of its customers to litter the floors and stairway with dangerous substances such as chewing gum”); Lingerfelt v. Winn- Dixie Texas, Inc., 645 P.2d at 489 (finding the key element of evidence was the testimony of three employees that strawberries normally were covered with cellophane for safety reasons); Cobb v. Skaggs Cos., 661 P.2d 73, 76–77 (Okla. Civ. App. 1982) (finding that jury could “find that [the defendant] created and maintained a fore- 66 ■ For The Defense ■ February 2012 seeable, unreasonable risk by displaying the grapes in such a manner without the protection of a table guard or other protective scheme”); Corbin v. Safeway Stores, Inc., 648 S.W.2d at 294 (noting the defendant’s awareness “that the grape bin was an unusually hazardous and continual source of slippery material on which customers may fall”); Canfield v. Albertsons, Inc., 841 P.2d at 1227 (finding that when the defendant “chose a method of displaying and offering lettuce for sale where it was expected that third parties would remove and discard the outer leaves from heads of lettuce they intended to purchase… [i]t was reasonably foreseeable that… some leaves would fall or be dropped on the floor by customers thereby creating a dangerous condition”); Malaney v. Hannaford Bros. Co., 177 Vt. at 135, 861 A.2d 1069 (finding that the plaintiff had submitted sufficient evidence to avoid a directed verdict on the issue of “the reasonableness of the steps taken by [the] defendant to address
the known hazard posed by the grape display”); Ciminski v. Finn Corp., 13 Wash. App. at 823, 537 P.2d 850 (allowing the plaintiff to survive the defendant’s summary judgment motion by submitting “evidence that there tended to be spills in the area where she fell, and that the floor in this area was sometimes greasy”); Steinhorst v. H.C. Prange Co., supra, 48 Wis. 2d at 684, 180 N.W.2d 525 (“unsafe condition here was substantially caused by the method used to display merchandise for sale,” namely, the self-serve shaving soap counter); Strack v. Great Atlantic & Pacific Tea Co., 35 Wis. 2d 51, 56, 150 N.W.2d 361 (Wis. 1967) (finding that defendant’s liability rested on, among other things, “the manner in which the Italian prunes were displayed”); Buttrey Food Stores Division v. Coulson, 620 P.2d at 553 (“existence of water on the floor of the store premises was a reasonable probability because of the weather conditions”). So the rule will not apply in some situations because the hazardous condition was not related to any particular method of operation. In presenting a motion for a summary judgment on the grounds that a court should not apply the “mode of operation” rule, counsel for a retailer should attempt to distinguish the facts in the retailer’s particular case from cases in which courts have applied the “mode of operation” rule. As courts have for the most part limited the rule to situations involving “produce displays or other instances of unwrapped and/or ready to eat food that customers were encouraged to handle,” counsel needs to argue that the situation at hand does not involve a product that the customer was “encouraged to handle.” Fisher, 298 Conn. at 429. Overall, defense counsels for retailers should not feel that they cannot file summary judgment motions when plaintiffs’ attorneys have based premises liability on “mode of operation” theories, although the rule clearly presents an additional hurdle and may make winning a summary judgment for defendants in cases involving falls more difficult to win. KEEP TRACK OF THIS AND ALL OF DRI’S CUTTING-EDGE CLE— Visit www.dri.org or call 312.795.1101 to register or for more information. RETAIL AND HOSPITALITY LITIGATION AND CLAIMS MANAGEMENT SEMINAR MAY 10–11, 2012 SWISSÔTEL CHICAGO CHICAGO, ILLINOIS REASONS TO ATTEND Network with leaders from both the retail and hospitality industries Receive practical, innovative advice from both outside and in-house counsel that will impact your approach to the practice of law when representing the retail, hospitality and restaurant industries Hear from featured speakers, including the CEO of a major international claims manager, Sedgwick Inc.; in-house counsel with major retail companies; and a trial attorney who serves as an NFL referee—he will share his secrets of negotiating in the big leagues Obtain updates and best practices recommendations on the ever-changing Medicare requirements impacting workers’ compensation and liability litigation For The Defense ■ February 2012 ■ 67
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Complex Questions. Answered. Rimkus
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Page 74 and 75: advocates John A. Aberasturi, Reno,
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