Litigation
eDiscovery Law 
Legal issues, news and best practices relating to the discovery of electronically stored information.
Post Frequency: 1/day Last Entry: November 18, 2009 at 19:37:50 Recent Entries: 369
By reston, Gates and Ellis
Go to eDiscovery Law, find other Litigation blogs, or browse all law blogs.
Search
Posts
Upcoming Events - December
Posted on November 18, 2009Pennsylvania Bar Institute – E-Discovery December 3, 2009 PBI Professional Development Conference Center Heinz 57 Center 339 Sixth Ave., 7th Floor Pittsburgh, PA K&L Gates partner David Cohen will present 'The Year in Review,' a closer look at some of the most important and interesting opinions of 2009...
Federal Judicial Center Releases Preliminary Results of "Case-Based Civil Rules Survey"
Posted on November 16, 2009The Federal Judicial Center has released the preliminary results of its Case-Based Civil Rules Survey. The survey, as described in the Executive Summary 'presents preliminary findings form a survey of attorneys in recently closed civil cases…The report covers discovery activities and case management in the closed cases; electronic discovery activity in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attorney attitudes towards specific reform proposals, and, more generally, the Federal Rules of Civil Procedure...
Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure
Posted on November 12, 2009In re Global Power Equip. Group, Inc., 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009) Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of the claimant and, applying the 'comity analysis' as articulated by the United States Supreme Court, determined that the contested matter 'should and shall be conducted under the Federal Rules and not under the Hague Evidence Convention...
Upcoming Event - IQPC's 8th Annual Electronic Discovery Event
Posted on November 11, 2009December 7-9, 2009 Altman Building New York, NY This electronic discovery conference gathers industry leaders together to explore the current risks, opportunities and current challenges facing e-Discovery. Taking a strategic look at how best to manage Electronic Stored Information in a proactive, cost-effective and efficient manner, the goal of the event is to provide the necessary tools to make e-Discovery a normal business function rather than a "catastrophic" event...
Attorney-Client Privilege in Work E-Mails
Posted on November 10, 2009By Anthony E. Davis New York Law Journal November 5, 2009 There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers -- reaching apparently inconsistent conclusions...
Defendants and General Counsel Sanctioned for Failure to Preserve Evidence
Posted on November 05, 2009Swofford v. Eslinger, NO. 6:08-cv-00066-Orl-35DAB (M.D. Fla. Sept. 28, 2009) In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects. Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually...
"Roadmap for Reform" Reports Provide Rules and Guidelines for Pilot Programs Aimed at Addressing Problems of Civil Justice System
Posted on November 04, 2009In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System ('Final Report') earlier this year...
Supreme Court of Arizona holds Metadata is Subject to Public Records Requests
Posted on October 30, 2009Lake v. City of Phoenix, No. CV-09-0036-PR (Ariz. Oct. 29, 2009) In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that 'if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws...
Sedona Continues Call for Cooperation
Posted on October 30, 2009By Jennifer H. Rearden and Farrah Pepper New York Law Journal October 29, 2009 It turns out that Jean-Paul Sartre's famous pronouncement that "hell is other people" was overly broad. Other people per se are not the problem, but rather other lawyers -- and uncooperative ones at that...
Court Imposes Strict Sanctions for Loss of Video Resulting from City's Reckless Failure to Ensure Preservation
Posted on October 29, 2009Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) In this case arising from defendant's claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city's failure to preserve the video of the arrest that was recorded by a camera in one of the officer's cars...
Court Denies Motion to Compel Sequestration and Forensic Examination of City's Computers and Storage Devices, Directs Parties to Cooperate to Develop a "Meaningful Discovery Plan"
Posted on October 28, 2009Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009) In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants' 'computers and other electronic storage devices' for forensic examination...
Upcoming Events - November
Posted on October 28, 2009National Business Institute: Keeping Up with E-Discovery – Live Seminar November 18, 2009 Washington State Convention and Trade Center 800 Convention Place Seattle, WA K&L Gates partner Todd Nunn will present 'The Amendments to the Federal Rules of Civil Procedure and Recent Case Law' addressing attorneys' obligations under the rules and recent decisions that effect those obligations...
Thompson Reuters' 13th Annual Electronic Discovery and Records Retention Conference
Posted on October 28, 2009November 5-6, 2009 Hotel Sax Chicago 333 N. Dearborn St. Chicago IL 60654 K&L Gates partner David R. Cohen will participate in a panel discussion, 'Retrospective Analysis of Critical Cases and How to Manage Your Risk' on November 5th at 10:15 AM. At this discussion, participants will hear about the most relevant cases in this industry and learn how to avoid common pitfalls...
Indiana Supreme Court Rules Trial Court Properly Admitted Evidence of Defendant's MySpace Page in Murder Trial
Posted on October 23, 2009Clark v. State, 2009 WL 3319674 (Ind. Oct. 15, 2009) Defendant Ian J. Clark was found guilty of murdering a two year old girl left in his care and was sentenced to life in prison without parole. On appeal, Clark argued that the trial court improperly admitted evidence from his MySpace account in violation of Ind...
Records Management, Privacy and e-Discovery Workshop: Achieving sensible solutions for records management, risk reduction and litigation readiness
Posted on October 21, 2009Featuring K&L Gates Partners, David R. Cohen and Dominic Bray, along with the Director of EMEA IM Marketing for HP Software, Erik Moller, this workshop addresses a myriad of issues including the risks and complexity of e-discovery and how to minimize those risks while maximizing cost savings and auxiliary benefits, European Privacy and Data Protection issues, and recommendations for best practices and solutions planning for data management, privacy and disclosure...
Pa. Court Weighs In on E-Discovery
Posted on October 19, 2009By Peter Hall Pennsylvania Law Weekly October 19, 2009 An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case...
Finding Emails "Not Reasonably Accessible" Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms
Posted on October 16, 2009Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009) During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties' respective requests for production...
Court Denies Request for Adverse Inference Absent Demonstration that Lost Emails were Favorable to Plaintiff
Posted on October 08, 2009Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009) Despite finding that 'Defendants have unquestionably breached a duty to preserve emails in this case,' the court denied plaintiff's motion for an adverse inference instruction where 'Plaintiff ultimately failed to demonstrate that any destroyed emails would have been favorable to her position...
No Reasonable Expectation of Privacy for Emails Transmitted through Employer's Server and thus, No Privilege
Posted on October 02, 2009Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009) In this case, the court overruled the determination of the special master and held that defendant had no reasonable expectation of privacy as to emails transmitted through plaintiff's server and thus, no attorney-client privilege as to those communications...
Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009
Posted on September 30, 2009Beginning October 1st, Phase One of the Seventh Circuit's new Electronic Discovery Pilot Program ('Pilot Program') will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers...
Upcoming Events - October
Posted on September 24, 2009IQPC: Information Retention & E-Disclosure Management, Europe September 30 – October 1, 2009 Marriott Hotel Auguste Orts 3-7/Grand Place 1000 Brussels, Belgium K&L Gates partner David Cohen will present 'Turning Theory Into Practice: Practical Steps to Take NOW to Reduce E-Disclosure/E-Discovery Risks and Costs' on Wednesday, September 30th at 11:00 AM...
Failure to Timely "Re-Assess its Procedures and Re-Check its Production" upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents
Posted on September 24, 2009U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009) Defendant moved to compel the production of 214 inadvertently produced documents. Plaintiff objected, arguing that the parties' discovery agreement precluded the waiver of privilege as to inadvertently produced documents...
Ex-Fund Manager Seeks to Block Evidence on E-mail Account
Posted on September 23, 2009The Wall Street Journal , Sep. 21, 2009 By Chad Bray NEW YORK -- Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear...
State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update
Posted on September 17, 2009Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Recently, Thomas Allman, a recognized authority on electronic discovery, gave permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country...
Court Orders Adverse Inference for Spoliation of Data on Handheld Devices
Posted on September 16, 2009Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) Plaintiff Southeastern Mechanical Services, Inc. ('SMS') moved for spoliation sanctions alleging that defendants, including individual defendants Smith, Sherouse and Brody, spoliated data by deleting it from their BlackBerries and laptops...
California Judicial Council Amends Rules of Court, Establishes Duty to Meet and Confer regarding Electronic Discovery
Posted on September 10, 2009On August 14, 2009 the Judicial Council adopted amendments to California's Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information when the parties 'meet and confer' prior to the initial case management conference...
Texas Supreme Court Finds Abuse of Discretion in Grant of Access to Defendant's Computers, Summarizes Proper Procedure under Tex. R. Civ. P. 196.4
Posted on September 08, 2009In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009) In this mandamus proceeding, the Supreme Court of Texas found that the trial court abused its discretion by ordering four of defendant's employees to turn over their computer hard drives for forensic examination...
Upcoming Events - September 2009
Posted on August 28, 2009What You Need to Know About Records Management September 2, 2009 Podcast hosted by Karl Schieneman 9:00 AM EDT K&L Gates Partner Thomas J. Smith will speak on the topic of what every company should know about records management. Click here to learn more...
9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful
Posted on August 27, 2009Law.com, August 27, 2009 By Dan Levine The Justice Department's aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age. In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California...
Holistic Privilege Protection: Protecting Privilege by Taking "Reasonable Steps" Throughout the Process of Production
Posted on August 26, 2009By K&L Gates partner Todd Nunn. This article appears in the summer edition of DRI's E-Discovery Connection, and begins: There are now rules specifically designed to protect the attorney-client privilege during document production: Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502...
Court Orders Monetary Sanction for Failure to Preserve to be Paid by Defendant and Counsel
Posted on August 25, 2009Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) Upon one of the defendant's revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions...
Court Articulates Analysis Under FRE 502, Finds No Waiver of Inadvertently Produced Email
Posted on August 21, 2009Coburn Group, LLC v. Whitecap Advisors, LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009) In this case, defendant, Whitecap Advisors LLC ('Whitecap'), sought to compel the return of one privileged email and to strike deposition testimony regarding the same...
For Discovery Violations, Court Sanctions Plaintiff and Counsel... Again
Posted on August 21, 2009Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009) In this case, plaintiff Bray & Gillespie Management, LLC ('B&G') sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004...
No Sanctions for Failure to Preserve Links to Graphics in Emails Where Plaintiff Failed to Establish Bad Faith or How the Images were Relevant or Necessary to His Claims
Posted on August 12, 2009Ferron v. Echostar Satellite, LLC, 2009 WL 2370623 (S.D. Ohio July 30, 2009) Plaintiff's 1300-page complaint alleged numerous violations of the Ohio Consumer Sales Practice Act against multiple defendants for sending email messages which conveyed a commercial advertisement and displayed the name and/or logo of 'Dish Network...
Third Parties Held in Contempt for Failure to Obey Court Order, Including Using Computer Following Instructions that "They May Not Touch the Computers Except to Turn Them Off" Prior To Production
Posted on August 11, 2009Sonomedica, Inc. v. Mohler, 2009 WL 2371507 (E.D. Va. July 28, 2009) In this case, the court adopted the recommendation of the magistrate judge and found third parties in contempt for violation of the court's orders, including the spoliation of electronically stored information on hard drives they were ordered to produce, and ordered them to pay plaintiff's attorney's fees and costs in the amount of $108,212...
Court Denies Motion for Sanctions for Failure to Suspend Automatic Overwriting of Backup Tapes Absent Showing of Bad Faith
Posted on August 07, 2009Southeastern Mech. Servs., Inc. v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009) Defendant Thermal Engineering Construction Services, Inc. ('TEI') moved for spoliation sanctions alleging that plaintiff failed to adopt a proper litigation hold procedure which resulted in the automatic deletion of email and other electronically stored information ('ESI') from plaintiff's backup tapes...
Finding Defendant "May Have" Caused the Deletion of "Possibly Relevant Emails," Court Orders Sanctions, Including Payment to Local Bar Association
Posted on August 06, 2009Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009) In this case, defendant Manpower, Inc. ('Manpower') failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers...
Court Orders Adverse Inference for Failure to Preserve Relevant Evidence following Notice that such Evidence May Have Been Relevant in Future Litigation
Posted on July 31, 2009KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009) Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire's spoliation of evidence, including the deletion of software and electronically stored information ('ESI') from its computers...
Court Orders Adverse Inference for Failure to Preserve Evidence following Notice that such Evidence May Have Been Relevant in Future Litigation
Posted on July 31, 2009KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009) Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire's spoliation of evidence, including the deletion of software and electronically stored information ('ESI') from its computers...
Previously Opened Emails Stored for Less than 181 Days in Web-Based Account May be Obtained by Trial Subpoena
Posted on July 29, 2009U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported) In this case, the Government sought to discover the contents of defendant's email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of '‘the contents of electronic communications (not in ‘electronic storage' as defined by 18 U...
Finding the Requested Information Relevant and Defendant's Cost Estimates "Greatly Exaggerated," Court Grants Plaintiffs' Motion to Compel
Posted on July 23, 2009Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D. Kan. July 21, 2009) This matter was before the court on plaintiffs' renewed motion to compel the production of electronically stored information ('ESI'). Previously, the court denied a motion to compel without prejudice for reasons including plaintiffs' failure to establish the relevance of the material requested and defendant's estimated cost to comply and directed the parties to address recently enacted Fed...
Court Orders Adverse Inference for Spoliation of CEO's Data but Finds No Obligation to Preserve Relevant Data of Third Party Consultants
Posted on July 16, 2009Goodman v. Praxair Servs., Inc., 2009 WL 1955805 (D. Md. July 7, 2009) In this case arising from a claim for breach of contract, plaintiff Goodman alleged that defendant Praxair Services, Inc. (formerly Tracer) ('Tracer/PSI') spoliated relevant data and was deserving of sanctions...
"Inhibited Ability to Participate Meaningfully in Electronic Discovery" Results in Reduction of Rate of Recoverable Attorney's Fees
Posted on July 10, 2009Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009) Following a verdict in their favor, plaintiffs moved for attorneys' fees as provided by law. Finding that plaintiffs were the 'prevailing parties' under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys' requested hourly rates, with one exception...
Swiss Government Says It Would Seize UBS Data Sought by U.S.
Posted on July 08, 2009Bloomberg.com, July 8, 2009 By David Voreacos and Mort Lucoff July 8 (Bloomberg) -- Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American account holders in a crackdown on tax evaders...
Court Grants Motion for Sanctions, Precludes Defendants' Assertion of Affirmative Defense
Posted on July 02, 2009Arista Records, LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009) In this copyright infringement case, plaintiffs alleged defendants committed egregious discovery violations deserving of terminating sanctions. The violations included wiping relevant hard drives of its employees, failing to preserve and produce relevant emails, providing misleading responses to discovery, and violating two court orders, among other things...
Governor Schwarzenegger Signs California's Electronic Discovery Act, to be Effective Immediately
Posted on July 01, 2009After previously vetoing a prior version of the bill for budgetary reasons, Governor Schwarzenegger signed California's Electronic Discovery Act last night, to be effective immediately. Closely tracking the 2006 amendments to the Federal Rules of Civil Procedure, the act institutes procedures to guide the discovery of electronically stored information in California...
Magistrate Judge Declines to Compel Plaintiff to Categorically Organize Documents that were Produced as Kept in the Usual Course of Business
Posted on June 30, 2009Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009) In response to defendant's requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information ('ESI') as they were kept in the usual course of business...
You Get What You Pay For: Court Allows Access to Defendant's Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs
Posted on June 26, 2009Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009) This case arose from plaintiff's claim that defendant's product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff's damages resulting from the condition...
Judge finds Dell Inc. in Contempt
Posted on June 25, 2009By BECKY BOHRER NEW ORLEANS (AP) — A state court judge on Thursday found Dell Inc. in contempt of court, saying the computer company was making a "mockery" of the system with its alleged piecemeal production of documents in a civil lawsuit over New Orleans' crime camera system...
Court Finds Request Overly Broad and Unduly Burdensome and Denies Motion to Compel but Orders Search of Electronically Stored Information According to Its Instruction
Posted on June 19, 2009Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009) Following the court's award of partial summary judgment to defendant, the sole cause of action remaining was plaintiff's claim for breach of an oral agreement. In support of that claim, plaintiff sought to compel the production of five DVDs containing the results of defendant's search for potentially responsive electronically stored information ("ESI") referencing plaintiff, including emails...
Iowa Supreme Court Adopts New Evidence Rule 5.502 Addressing the Disclosure of Information Subject to the Attorney-Client Privilege and Work Product
Posted on June 18, 2009On April 2, 2009, the Iowa Supreme Court approved the adoption of Evidence Rule 5.502 addressing the disclosure of information covered by the attorney-client privilege and work product. Substantially similar to recently enacted Federal Rule of Evidence 502, the new rule outlines the effects of disclosure with regard to waiver, including the effect of inadvertent disclosure...
Upcoming Events
Posted on June 17, 2009E-Discovery Workshop via HP Halo Telepresence Collaboration Studios – 'E-Discovery in a Down Economy: Achieving Litigation Readiness While Cutting Costs and Improving Outcomes' July 16, 2009 HP Halo Studio Locations: New York, NY – 2 Penn Plaza, 8th Floor Marlborough, MA – 200 Forest St...
Appellate Court Finds Trial Court Abused its Discretion by Failing to Impose Terminating Sanctions for Discovery Abuses, Directs Entry of Default Judgment
Posted on June 17, 2009Doppes v. Bentley Motors, Inc., 2009 WL 1578384 (Cal. Ct. App. June 8, 2009) In this case arising from plaintiff's claims of a foul odor in his new car and defendant's failure to repair it, plaintiff repeatedly sought terminating sanctions from the trial court for defendant's repeated and egregious discovery abuses...
Finding Plaintiffs' Ex-Employee and his New Employers Culpable for the Spoliation of Ex-Employee's Laptop, Court Orders Adverse Inference and Monetary Sanctions
Posted on June 15, 2009Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del. Ch. May, 29, 2009) (Unpublished) In this case, arising from plaintiffs' claims that defendants interfered with business relationships and misappropriated trade secrets, plaintiffs sought sanctions against defendants for the destruction of information on a laptop computer which belonged to defendant Michael Kates, a former employee of plaintiffs...
Court Declines to Compel Production of Documents from Foreign Jurisdiction upon Finding a Lack of Personal Jurisdiction and where Certain Documents are Protected from Production by Israeli Law
Posted on June 04, 2009Linde v. Arab Bank, PLC, 2009 WL 1456573 (E.D.N.Y. May 22, 2009) In this case, defendant Arab Bank moved to compel production of documents, pursuant to subpoena, by non-parties Israel Discount Bank, Ltd. ('IDB'), its indirect, wholly –owned subsidiary, Israel Discount Bank of New York ('IDBNY'), and Bank Hapoalim ('Hapoalim')...
Finding Defendants' Behavior "a Textbook Case of Discovery Abuse," Court Orders $1,022,700 in Monetary Sanctions
Posted on June 04, 2009Kipperman v. Onex Corp., 2009 WL 1473708 (N.D. Ga. May 27, 2009) In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought sanctions accordingly...
Update: Supreme Court of Louisiana Vacates Court of Appeal's Judgment to Vacate Preliminary Injunction of District Court, Remands for Further Proceedings
Posted on June 01, 2009Council of the City of New Orleans v. Washington, 2009 WL 1492869 (La. May 29, 2009) In this case, attorney Tracie Washington and others appealed a preliminary injunction from the District Court preventing the dissemination of emails received in response to a public records request...
Court Rules Office of Administration Not Covered by Freedom of Information Act, Records Related to White House Email Management Systems Need not be Produced
Posted on May 27, 2009Citizens for Responsibility and Ethics in Washington v. Office of Admin., 2009 WL 1373612 (D.C. Cir. May 19, 2009) Citizens for Responsibility and Ethics in Washington ('CREW') alleged that 'entities in the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House emails...
Court Finds Delay in Objecting to a Failure to Produce in Native Format Was "Patently Unreasonable" and Denies Defendant's Motion to Compel Production; Court Also Denies Motion to Confirm Adequacy of Defendant's Manual Search
Posted on May 27, 2009Ford Motor Co. v. Edgewood Props., Inc., 2009 WL 1416223 (D.N.J. May 19, 2009) In this case, arising from allegations surrounding contaminated concrete following the demolition of a Ford plant in New Jersey, defendant Edgewood Properties ('Edgewood') brought several motions before the court, including a motion to compel production of documents in their native format (or documents containing metadata) and a motion for an order granting Edgewood the right to confirm the adequacy of Ford's manual collection process by searching the electronic systems of certain custodians...
Preliminary Injunction against Publication and Dissemination of Documents Received in Public Records Request Violates First Amendment
Posted on May 20, 2009Council of the City of New Orleans v. Washington, 2009 WL 1300747 (La. Ct. App. May 12, 2009) In this case, Relator Tracie Washington, a Louisiana attorney, and others, appealed the trial court's issuance of a preliminary injunction which prevented them from publishing or disseminating documents received in response to a public records request and required that all documents be returned, among other restrictions...
Granting Motion to Compel, Court Orders Appointment of Independent Expert "to Retrieve any Deleted Responsive Files from Defendants' Computers"
Posted on May 06, 2009Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009) In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff's requests for production of documents and failed to offer adequate justifications or explanations for such behavior...
Federal Court Defers Final Ruling on Attorneys' Fees Motion Related to Forensic Examination
Posted on May 05, 2009Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009) In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements...
Centaurus Financial Fined $175,000 for Failing to Protect Confidential Customer Information
Posted on April 30, 2009The Financial Industry Regulatory Authority (FINRA) announced this week that it has fined Centaurus Financial, Inc. $175,000 for failing to protect confidential customer information. Specifically, between August 2006 and July 2007 Centaurus failed to employ adequate safeguards against infiltration of its fax server containing the information at issue...
Qualcomm Agrees To Pay Broadcom $891 Million as Part of Settlement Agreement
Posted on April 30, 2009Announced this week, Broadcom Corporation and Qualcomm Incorporated have entered into a settlement and multi-year patent agreement. Under the terms of the settlement agreement, Qualcomm has agreed to pay Broadcom $891 million over four years. Other notable terms of the agreement include dismissal of all litigation between the companies and Broadcom's withdrawal of its complaints to the European Commission and the Korea Fair Trade Commission...
Acknowledging Trial Court's Efforts to Fashion an Appropriate Sanction, Appellate Court Rejects Argument that Sanction was Punitive and Affirms Award of $90,000
Posted on April 24, 2009Oz Optics, Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. Apr. 15, 2009) (Unpublished) In this case arising from defendant/appellant Hakimoglu's breach of her employment contract, the trial court awarded $90,000 in monetary sanctions upon finding that Hakimoglu violated a court order to produce her laptop and spoliated evidence by using wiping software to delete potentially relevant data...
Keeping You Informed: K&L Gates Partners to Speak at Upcoming Events
Posted on April 21, 2009IQPC 7th Annual e-Discovery Conference April 27-29, 2009 Le Meridien San Francisco 333 Battery Street San Francisco, CA 94111 K&L Gates partner David Cohen will be a part of the panel leading the discussion at Workshop C entitled, 'E-discovery In a Down Economy: Achieving Litigation Readiness While Cutting Costs & Improving Outcomes' scheduled to take place on April 27th at 2:45 PM...
Finding Question of Duty to Preserve Backup Tapes Hinges on Applicability of Exception to the Rule, Court Orders Hearing to Address the Issue
Posted on April 17, 2009Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009) In this case, defendants filed a motion seeking a hearing to address plaintiffs' suspected spoliation of evidence, for an order forbidding plaintiffs from asserting that their drug, escitalopram, did produce unexpected results, and for plaintiffs to pay attorney fees...
Court Finds Party's Discovery Performance "Clearly Egregious" but Undeserving of Harshest Sanctions, Orders Additional Discovery and Forensic Examination of Backup Systems to Verify Completeness of Production
Posted on April 16, 2009Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982460 (S.D. Fla. Apr. 9, 2009) Following defendant's discovery of thousands of relevant documents two months after the close of discovery and one month before trial, defendant ordered its employees to print the information and then to delete that information from their computers...
Reliance on Employees' Judgment in Document Retention Policy Results in Finding of Culpability for Spoliation where Documents were Not Preserved
Posted on April 10, 2009Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009) In this patent infringement case, plaintiff, Phillip M. Adams & Associates ('Adams'), alleged that defendants ASUSTEK Computer Inc. and ASUS Computer International (collectively 'ASUS') spoliated relevant evidence and should therefore be sanctioned...
Court Denies Criminal Defendant Access to Image of Police Hard Drive Absent Showing of Falsification or Adulteration of Transcripts of Chats Produced by the State
Posted on April 09, 2009State v. Rivas, 2009 WL 875216 (Ohio Mar. 31, 2009) In this case, the Supreme Court of Ohio was asked to address the question of whether 'in a case in which a prosecutor has complied with its duty to provide discovery by delivering a transcript of evidence from the hard drive of a police computer, the accused has the right to obtain a mirror image of the computer hard drive without making a prima facie showing that the information in the transcript is false, incomplete, adulterated, or spoliated...
Timing is Everything: Court Declines to Impose Spoliation Sanctions where Critical Evidence was Destroyed Before Duty to Preserve Arose
Posted on April 07, 2009U.S. v. Maxxam, Inc., 2009 WL 817264 (N.D. Cal. Mar. 27, 2009) In this case, which arose from the joint purchase of the Headwaters Forest by the United States Government and the State of California, plaintiffs moved for sanctions due to the alleged spoliation of 'critical' evidence by defendants Maxxam and Hurwitz...
Vendor's Mistake Results in Inadvertent Production, Court finds No Waiver
Posted on March 30, 2009Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009) In this declaratory judgment action, the parties sought to settle the issue of copyright ownership over a made-for-television movie called The Secret. In the course of discovery, due to a mistake by their 'document vendor,' plaintiffs inadvertently produced privileged information...
Court Grants Plaintiff's Motion to Compel Re-Production of Particular ESI in Light of Discrepancies between Emails and Attachments, Orders Parties to Confer Regarding Request for Access to Hard Drives
Posted on March 27, 2009White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009) In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails' sent dates and the creation dates of their attachments...
Finding Defendants' Summaries an Insufficient Discovery Response, Court Grants Motion to Compel and Authorizes Plaintiff to Submit Proposed Hard Drive Inspection Protocol for Court's Consideration
Posted on March 25, 2009Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009) In this copyright infringement case, defendants refused to properly respond to discovery and instead provided summaries of the requested information designated 'for settlement purposes only...
Court's Opinion a "Wake-Up Call" About the Need for Careful Deliberation and Cooperation in Crafting Search Terms
Posted on March 24, 2009William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009) This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice. In the course of litigation, The Dormitory Authority of New York ('DASNY') agreed to produce the relevant documents of the non-party construction manager, Hill International ('Hill')...
K&L Gates Obtains Ruling Denying Defendant's Motion for Contempt Against Plaintiff's Technical Consultant, and Court Grants Plaintiff's Motion for Sanctions for Deletion of Data during Pendency of Litigation
Posted on March 20, 2009Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009) In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company's ('OSF's') motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc...
Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed
Posted on March 20, 2009ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009) In this case, plaintiffs moved for an adverse inference instruction alleging that Nassau County failed to timely implement a litigation hold which resulted in the destruction of potentially relevant documents and that it failed to adequately search for potentially responsive electronically stored information ('ESI')...
State has Obligation to Provide Defendants "Meaningful Access" to Copies of Seized Hard Drives
Posted on March 18, 2009State v. Dingman, 2009 WL 597208 (Wash. App. Mar. 10, 2009) On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house...
American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate
Posted on March 16, 2009On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery. The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System...
Court Imposes Sanctions on Plaintiff and Counsel, Orders Plaintiff to Provide Access to Database and for Attorney and his Law Firm to Pay Defendant's Costs, Fees, and Expenses
Posted on March 16, 2009Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) This case arises from an insurance dispute following damage to Bray & Gillespie's ('B&G') resort properties from Hurricanes Charley, Frances, and Jeanne...
California Assembly Approves "Electronic Discovery Act," Sends Bill to Senate
Posted on March 13, 2009On March 12, 2009 California's Assembly took steps toward the legislature's approval of proposed amendments to California's Code of Civil Procedure to include rules governing the discovery of electronically stored information, by approving House Assembly Bill 5 and sending the bill to the Senate for its approval...
EU Article 29 Working Party Releases Working Document on Pre-Trial Discovery for Cross Border Civil Litigation
Posted on March 12, 2009On February 11, 2009, the EU Article 29 Working Party, set up under Article 29 of Directive 95/46/EC, released its working document addressing the difficulties of cross border discovery and providing guidance to EU data controllers on how to proceed. Recognizing the 'need for reconciling the requirements of US litigation rules and the EU data protection provisions,' the document is intended to provide guidelines for EU data controllers but also provides valuable insight to American practitioners regarding the difficulties they may face in cross border discovery, especially with European countries...
Suspicious Timing of Destruction Results in Adverse Inference and Permission to Add a Claim of Exemplary Damages despite Lack of "Smoking Gun"
Posted on March 10, 2009Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009) Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate's property...
Court Addresses Tension between Defamation Victim's Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance on How to Proceed
Posted on March 06, 2009Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009) Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant's motion to quash...
Documents Re-Organized and Stored are No Longer Maintained in "Usual Course of Business," Offer of Inspection Inadequate Discovery Response
Posted on March 02, 2009Court Considers Zubulake Factors, Denies Defendant's Motion to Shift Cost of OCR Processing
Posted on February 26, 2009Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009) In this case, following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), defendant asserted that the cost of processing the documents should be shifted to the plaintiff...
Plaintiff Fails to Respond Promptly to Notice of Inadvertent Production, Court Orders Privilege Waived
Posted on February 24, 2009Brookdale Univ. Hosp. & Med. Ctr., Inc., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009) In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff. The court declined to overturn its ruling regarding documents specifically identified by the plaintiff as inadvertently produced and addressed by the court’s prior order...
Key Lawmaker Moves to Protect Privilege and Work-Product Doctrine
Posted on February 20, 2009The National Law Journal, Feb. 20, 2009 By Marcia Coyle Despite reassuring statements by Attorney General Eric Holder on the issue of attorney-client privilege waivers in corporate investigations, a key senator is moving forward with legislation to put protection for the privilege and the work-product doctrine into law and throughout government...
Court Dismisses Plaintiffs' Claims as Sanction for Discarding Laptop, Orders Adverse Inference Instruction as to Defendants' Cross-Claims
Posted on February 20, 2009Kvitka v. Puffin Co., LLC, 2009 WL 385582 (M.D. Pa. Feb. 13, 2009) Finding plaintiff intentionally discarded her laptop despite a duty to preserve it, the court ordered dismissal of her claims and an adverse inference instruction as to defendants’ cross-claims...
Bill proposes ISPs, Wi-Fi keep logs for police
Posted on February 20, 2009CNET News, Feb. 19, 2009 By Declan McCullagh, Chief Political Correspondent Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police investigations...
Same Facts, Different Results: California Court Declines to Reconsider Ruling in Favor of Rambus, Despite Delaware Court's Opposite Conclusion
Posted on February 17, 2009Hynix Semiconductor Inc. v. Rambus Inc., 2009 WL 292205 (N.D. Cal. Feb. 3, 2009) Beginning in 2000, Rambus Inc. (“Rambus”) alleged that several companies had infringed its patents and instituted legal action. Among the companies accused by Rambus were Micron Technology, Inc (“Micron”) and Hynix Semiconductors, Inc...
K&L Gates Partners to Speak at Upcoming E-Discovery Events
Posted on February 17, 2009The American College of Trust and Estate Counsel – 2009 Annual Meeting March 5-6, 2009 The Westin Mission Hills Rancho Mirage, CA K&L Gates Partner Martha Dawson will present “Where There’s a Will, There’s Metadata: Are your Clients’ (And Your Own) Secrets Really Safe?” on March 5th at 9:00 AM and again on March 6th at 8:00 AM...
Recognizing Broader Restrictions on Third-Party Discovery, Court Denies Plaintiff's Fifth Motion to Compel Mirror Image of Computers
Posted on February 13, 2009Mintel Int’l Group, Ltd. v. Neerghen, 2009 WL 249227 (N.D. Ill. Feb. 3, 2009) In this case, the plaintiff, Mintel International Group Limited (“Mintel”), alleged that defendant Neerghen violated the Illinois Trade Secrets Act, the Computer Fraud Abuse Act, and various terms of his employment contract when he emailed confidential Mintel documents to his personal account and subsequently accepted employment with Mintel’s competitor, Datamonitor...
A Promise Made is a Promise Kept: Court Holds Party to Its Promise and Orders Re-Production in Native Format but Orders Requesting Party to Bear the Cost
Posted on February 11, 2009In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D. Ky. Feb. 2, 2009) In this case, despite prior production in accordance with the Federal Rules, the court enforced a promise to produce in native format but ordered the requesting party to bear the costs...
Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions
Posted on February 09, 2009SEC v. Badian, 2009 WL 222783 (S.D.N.Y Jan. 26, 2009) In this case, Rhino Investors, Inc. (“Rhino”), a non-party, sought to claw back approximately 260 documents that it claimed were inadvertently produced in 2003 in the midst of an SEC investigation...
Rejecting Arguments Regarding "Transitory Nature" of Data and Server Limitations, Court Finds Defendants Failed to Preserve Evidence in Bad Faith, Orders Adverse Inference and other Sanctions
Posted on February 05, 2009Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009) Upon finding that defendants acted in bad faith to deliberately destroy relevant evidence despite a duty to preserve, the court imposed severe sanctions. Defendant Usenet...
Despite Protection of Marital Privilege from Email's Admission "in Judicial or Grand Jury Proceedings," Court Finds Email may be Admitted for Other Purposes and Denies Motion to Suppress
Posted on February 03, 2009U.S. v. Nicholas, 2008 WL 5546721 (C.D. Cal. Dec. 29, 2008) In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas testify...
"Like any Ordinary Litigant, the Government Must Abide by the Federal Rules of Civil Procedure"
Posted on January 28, 2009S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009) In this case, arising from claims of securities fraud, the court addressed questions concerning the government’s discovery obligations in civil discovery. Throughout discovery in the case, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information...
Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production
Posted on January 26, 2009Lake v. City of Phoenix, 2009 WL 73256 (Ariz. Ct. App. Jan. 13, 2009) In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law...
Court Enforces Agreement Regarding Search Terms and Production of Disaster-Recovery Backup Tapes; Holds Third-Party in Contempt Despite $6 Million In "Extensive Efforts to Comply"
Posted on January 26, 2009In re Fannie Mae Sec. Litig., 2009 WL 21528 (D.C. Cir. Jan. 6, 2009) In this case, the district court held defendants had sole authority to dictates search terms, per stipulated order, and sanctioned a third-party for failure to timely produce documents, despite significant efforts to comply with the deadline...
Michigan Amends Court Rules to Address E-Discovery
Posted on January 22, 2009On December 16, 2008, the Michigan Supreme Court adopted amendments to Michigan’s Court Rules to address discovery of electronically stored information in civil litigation. The new rules became effective January 1, 2009. The adopted amendments affect the following rules: 2...
Destruction of Documents Pursuant to Document Retention Policy Results in Dispositive Sanctions Where Policy was Created as Part of Litigation Strategy and Thus Litigation was Reasonably Foreseeable
Posted on January 16, 2009Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009) In this case arising from Micron’s alleged infringement of Rambus’ patents, a bench trial was held on the issue of Rambus’ alleged spoliation of relevant documents pursuant to a document retention policy it had recently implemented...
Louisiana Amends Three More Rules to Address Treatment of Electronically Stored Information
Posted on January 13, 2009Effective January 1, 2009, Louisiana has adopted amendments to several civil rules to specifically address the treatment of electronically stored information. CCP 1354 Subpoena deuces tecum - was amended to govern the form of electronically stored information produced in response to a subpoena duces tecum and specifically addresses the format of production and production of documents not reasonably accessible, among other things...
"Since Both Parties Went Through the Same Stop Sign...They Both Should Pay for the Crash": Court Orders Parties to Split Cost of Privilege Review
Posted on January 09, 2009Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008) In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information...
Despite Document Retention Policy Allowing Individual Determination for Need to Preserve, Court Orders Board to Bear Recovery Cost of Deleted Emails in Response To Records Request
Posted on January 09, 2009State ex rel. Toledo Blade Co. v. Seneca County Bd. Of Comm’rs, 2008 WL 5157733 (Ohio Dec. 9, 2008) This case arose from plaintiff’s request to review “all outgoing and incoming emails” of several Seneca County Commissioners following the board’s approval of plan that called for the demolition of the courthouse...
K&L Gates Partners to Speak at E-Discovery CLEs in February
Posted on January 05, 2009Seattle University CLE – What Every Practitioner Needs to Know About e-Discovery February 6, 2009 8:30 a.m. – Noon Seattle University School of Law Sullivan Hall 901 12th Avenue Seattle, WA 98122-1090 K&L Gates partner Helen Moure will present the first session, “Basic Common Concerns (Top 10 Problems)”, at 8:40 a...
New Year, New Rules: Alaska and Virginia Adopt E-Discovery Amendments to Civil Rules
Posted on January 02, 2009On December 19, 2008, the Supreme Court of Alaska adopted amendments to Alaska’s Rules of Civil Procedure to address the discovery of electronically stored information. The amendments affect rules 16, 26, 33, 34, 37, and 45 and become effective April 15, 2009...
Maine Adopts Amendments to Rules of Civil Procedure
Posted on December 31, 2008Effective August 1, 2008, Maine has adopted amendments to its Rules of Civil Procedure to “address the need for specific treatment of the discovery of electronically stored information.” As stated in the Advisory Committee Note to Rule 16, the amendments were taken largely from the 2006 amendments to the Federal Rules of Civil Procedure and practitioners are instructed that “guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee’s Notes, and cases applying to the federal rules...
Court Enforces Clawback Agreement, Denies Motion to Compel
Posted on December 29, 2008Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008) On the eve of trial in this case in which plaintiffs alleged trade secret theft, the court granted an extension “on urgent party request” so that additional discovery could be accomplished...
Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived
Posted on December 24, 2008Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Nov. 25, 2008) In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor...
California Legislature Reconsiders E-Discovery Amendments
Posted on December 24, 2008On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information...
A New Year's e-Resolution: Sending Safe e-Mail
Posted on December 17, 2008pThe risks associated with e-mail miscommunication and misdirection have been well documented. Because these risks originate from e-mail users, perhaps the best way to mitigate such risks is to help individual e-mail users remember and implement a checklist for sending e-mails safely...
New Additions to the Growing List of State E-Discovery Rules; Arkansas and Kansas Added for the First Time
Posted on December 15, 2008Arkansas Effective January 10, 2008 Arkansas has amended Rule 26 to address inadvertent disclosure. Rules 26 General Provisions Governing Discovery (See section 26(b)(5)) Iowa Effective September 1, 2008 the Iowa District Court Trial Scheduling Order was amended to address the discovery of electronically stored information...
Court Declines to Order Re-production in Electronic Format; Finds No Waiver of Privilege from Inadvertent Disclosure
Posted on December 12, 2008Laethem Equip. Co. v. Deere & Co., 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008) In this case involving breach of contract and other claims, the court ordered the defendant to return inadvertently produced, privileged, electronically stored information (“ESI”) to the plaintiffs, and ordered the parties to secure all relevant ESI in their possession and file a written outline of the secured data (“data log”) with opposing counsel and the court...
Court Addresses Production of Metadata in Great Detail and Grants Production of Some but Not All Data Sought
Posted on December 11, 2008Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008) In this class action case alleging unlawful searches and seizures of plaintiffs’ homes, a discovery dispute arose regarding the production of metadata...
Finding Burden of Retention and Production Outweighs Benefit, Court Allows Recycling of Back Up Tapes
Posted on December 11, 2008Gulfstream Worldwide Realty, Inc. v. Phillips Elecs. N. Am. Corp., 2007 WL 5685128 (D.N.M. Oct. 19, 2007) In this case, arising out of a claim for a commission on the sale of a semiconductors plant, Phillips Electronics North America (“PENAC”) moved the court for a protective order to allow NXP Semiconductors USA, Inc...
One More Round: Court of Appeals Affirms All but Scope of Remedy, Remands with Specific Instructions to Narrow Scope
Posted on December 03, 2008Qualcomm Inc. v. Broadcom Corp., 2008 WL 5047675 (Fed. Cir. Dec. 1, 2008) On December 1, 2008, the Court of Appeals for the Federal Circuit issued its opinion affirming the lower court’s findings that Qualcomm breached its duty to disclose the patents at issue in the underlying case and thus waived the enforceability of those patents...
Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver
Posted on November 26, 2008Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008) In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents. Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents...
Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to "Fix" Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed
Posted on November 26, 2008Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 14, 2008) In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil...
K&L Gates Lawyers to Give Several Presentations in December
Posted on November 25, 2008Pennsylvania Bar Institute: e-Discovery December 2, 2008 9:00 AM – 4:30 PM EST Several Locations, Webcast K&L Gates partner David Cohen will speak at two sessions during this event. The first presentation, “ABCs of EDD” will begin at 9:05 a...
Nebraska Recodifies Civil Rules
Posted on November 24, 2008According to a Revisor’s note: The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb...
Arizona Amends Rules of Family Law Procedure to Address Electronic Discovery
Posted on November 20, 2008Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues. The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009...
In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception
Posted on November 19, 2008Qualcomm Inc. v. Broadcomm Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008) At trial in this case, Broadcomm made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications...
New Additions to List of District Court Rules
Posted on November 11, 2008At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery...
Miscommunication about Search Terms Leads to Defendants' Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff
Posted on November 10, 2008Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008) In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production...
Court Holds No Expectation of Privacy on Work Computer, Even for "Personal" Information
Posted on November 10, 2008State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008) In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search...
A Busy November: K&L Gates Partners to Speak at Several E-Discovery Events
Posted on November 07, 2008Allegheny County Bar Association CLE - T-BOLT: The Best of Legal Technology November 10-11, 2008 David L. Lawrence Convention Center 1000 Fort Duquesne Blvd. Pittsburgh, PA 15222 K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith...
Finding Defendants' Proposed Search Protocol "Fundamentally Misguided," Court Creates Own and Orders Search of "Any Depository" that May Contain the Information Sought
Posted on November 06, 2008D’Onofrio v. SFX Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008) In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery. Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested...
K&L Gates Partner Receives E-Discovery Award at Annual Gala
Posted on November 05, 2008At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award. David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards...
Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay "All Reasonable Costs" Related to Discovery Dispute
Posted on November 05, 2008Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008) In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions...
Court Orders Production of Relevant Source Code Citing Defendant's Suggestion for Mitigating Costs
Posted on November 05, 2008Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement...
Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants' Hard Drives
Posted on October 30, 2008Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008) In this defamation case, plaintiffs sought an order allowing expedited discovery. Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc...
K&L Gates Lawyers Make Major Contributions to E-Discovery Publication
Posted on October 29, 2008Available now from PBI Press, e-Discovery provides guidance for practitioners of all levels of experience through the often complicated world of e-discovery. Once again showcasing the depth of knowledge at the firm, four of the fifteen contributing authors to the publication are members of the K&L Gates e-Discovery Analysis and Technology Group...
Newly Released Securities and Exchange Commission Enforcement Manual ("Red Book") Provides Guidance on Treatment of Electronic Information
Posted on October 28, 2008For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public. Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation...
Court Declines to Require Plaintiff to Designate Specifically Confidential Portions of Documents during Discovery where Entire Document does not Rise to that Level
Posted on October 28, 2008Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008) In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things...
Western District of North Carolina Amends Local Rules, Specifies Electronic Production as Topic of Pretrial Conference
Posted on October 24, 2008Effective January 1, 2008, amended Local Rule 16.1 specifies appropriate topics for consideration at the Initial Pretrial Conference, including the production of electronically stored information (“ESI”). Click on the following link to see amended rule: Local Civil Rule 16...
Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
Posted on October 24, 2008At least 38 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery...
Court Highlights Cooperation Requirements of Discovery under Rule 26, Rules Objections Waived for Failure to Be Specific, and Orders Meet and Confer to Resolve Remaining Disputes
Posted on October 23, 2008Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008) In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond...
To "Expedite the Flow of Discovery and Facilitate Prompt Resolution of Disputes", Court Adopts Proposed Order Governing Electronic Discovery
Posted on October 23, 2008Star, Inc. v. QFA Royalties LLC, No. 07-cv-02223-WYD-CBS (D. Colo. Filed Oct. 10, 2007) In this case, the court granted an unopposed motion of the defendant to enter an order governing electronic discovery. The proposed order adopted by the court was intended to “expedite the flow of discovery material and facilitate prompt resolution of disputes over production of electronic materials…” Included in the order was a provision requiring each party to identify an “e-discovery liaison” through whom all discovery requests and responses would be made as well as provisions providing instruction regarding search methodology, timing of discovery, format of production, privilege review, document retention and costs...
Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry
Posted on October 21, 2008Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008) In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence...
Finding "No Reason to Treat Websites Differently than Other Electronic Files," Court Grants Adverse Inference for Failure to Preserve Website
Posted on October 21, 2008Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication) In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor...
Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor
Posted on October 20, 2008In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008) In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of 2000, the debtor contracted with MBP to handle the debtor’s billing...
Court Allows Subpoena Seeking Inspection of Plaintiff's Mother's Laptop, but Orders Defendant to Prepare Search Protocol and Pay Her Reasonable Costs
Posted on October 15, 2008Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. 2008) In this breach of contract case, Hoover moved to quash subpoenas issued by defendant to two non-parties: Hoover’s mother and Hoover’s former roommate. The subpoena issued to Hoover’s mother requested inspection of her laptop or any electronic storage device “for documents copied, sent to, or received by her son” related to several entities, including the defendant...
Court Orders Forensic Examination of Defendants' Business and Home Computers, Articulating 20-Step Protocol
Posted on October 14, 2008Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008) In this breach of contract case, plaintiffs alleged that defendants wrongfully obtained and used confidential information from former employee, Kenneth Fuston, who went to work for the defendants...
Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained
Posted on October 13, 2008Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008) In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff's production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff's business, satisfied the responding party's obligations under Rule 34 of the Federal Rules of Civil Procedure...
Supreme Court of Ohio Adopts E-Discovery Amendments to Rules of Civil Procedure
Posted on October 10, 2008The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including several related to electronic discovery. The amendments, which took effect on July 1, 2008, include changes to Rules 16, 26, 33, 34, 37, and 45...
Current Listing of States That Have Enacted E-Discovery Rules
Posted on October 10, 2008More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Arizona Amendments to Rules of Civil Procedure 16, 26, 26.1, 33, 34, 37 and 45 Effective January 1, 2008 Connecticut Connecticut Practice Book, Superior Court – Procedures in Civil Matters Sec...
Governor Vetoes E-Discovery Amendments to California's Civil Discovery Act
Posted on October 09, 2008On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act . In his veto message, the Governor explained: The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session...
Court Denies Relief Where Party Ignored Court's Suggestions for Reducing Volume of ESI Captured by Keyword Search: "Defendants Must Now Lie in the Bed that They Have Made"
Posted on October 03, 2008Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008) In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes...
Reserving Judgment on Spoliation Pending Supplemental Briefing, Court Demands Answers to Eight Specific Questions
Posted on September 26, 2008Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008) In this breach of contract litigation over allegedly non-conforming goods, Glasforms moved for sanctions against third-party defendant Taishan Fiberglass for the spoliation and destruction of documents...
State Court Rejects Appeal of Discovery Order Requiring Production of "Broken" Computers
Posted on September 25, 2008Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL 4291319 (Pa. Super. Sept. 22, 2008) In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants...
Court Orders Defendant to Re-Produce Documents Previously Produced as TIFF Images, Setting Out Three Format of Production Options
Posted on September 24, 2008Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions. Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF images...
President Bush Signs into Law S. 2450, a Bill Adding New Rule 502 to the Federal Rules of Evidence
Posted on September 22, 2008On Friday, September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection...
Adverse Inference Instruction Warranted Where Spoliation Claim Supported by Credible Arguments, Witnesses and Evidence
Posted on September 20, 2008Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008) In this case, plaintiffs claimed that they were fraudulently induced to invest in defendant’s catering businesses, and sought to inspect defendants’ business records. Plaintiffs moved for an extension of time to complete their inspection, and also requested sanctions...
Briefing Schedule Set for Outstanding Discovery Motions in Qualcomm v. Broadcom Litigation
Posted on September 19, 2008Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California On September 16, 2008, Magistrate Judge Barbara L. Major set a briefing schedule for the five pending discovery motions filed by the parties, requiring any oppositions to be filed on or before October 3, and any replies to be filed on or before October 10, 2008...
Adverse Inference and Other Sanctions Warranted for Plaintiff's Failure to Produce Damaging Emails that were Eventually Produced by Third Party
Posted on September 19, 2008Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) In this patent infringement litigation, BNY sought sanctions on the grounds that Metrokane failed to produce a series of emails said to be highly damaging to Metrokane's case...
Failure to Preserve Key Player's Email and Interview Transcripts Warrants Adverse Inference Instruction, but not Default Judgment
Posted on September 11, 2008Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. Sept. 2, 2008) In this class action securities litigation, plaintiffs sought sanctions based on alleged evidence spoliation by defendants. Plaintiffs moved for terminating sanctions or, in the alternative, for lesser sanctions in the form of adverse inference instructions and an order precluding defendants from relying on spoliated evidence...
House Passes Proposed Evidence Rule 502
Posted on September 10, 2008On September 8, 2008, the House of Representatives passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The Senate had earlier approved the bill by unanimous consent on February 27, 2008. Having passed in identical form in both chambers, the bill now awaits the signature of the President before becoming law...
Defendant to Make "All Possible Efforts" to Produce Email from Personal Yahoo! Account; Failure to Timely Identify Account Warrants Sanctions
Posted on September 10, 2008Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008) In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant’s personal Yahoo! account...
Defendant's "Brazen Destruction of Evidence" Warrants Default Judgment
Posted on September 09, 2008Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008) In this copyright infringement litigation, seven major recording companies alleged that defendant Howell had used the KaZaA file-sharing program to download their sound recordings and distribute them to other users of the network...
K&L Gates Partner Martha J. Dawson to Deliver E-Discovery Presentation in Berlin
Posted on September 08, 2008K&L Gates Compliance Talks E-Discovery Analysis and Technology (e-DAT) Group: Tool for Due Diligence, Compliance and Investigations Thursday, September 18, 2008, 5:30-6:30 pm K&L Gates LLP Markgrafenstraße 42, 10117 Berlin Presentation by Martha J...
The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible
Posted on September 03, 2008July 2008. Available for free download here. From the Preface: This Sedona Conference® Commentary focuses on the decision making process relating to the preservation of sources of electronically stored information that may contain discoverable information that is “not reasonably accessible...
Avoiding Question of Whether Third-Party's Compliance with Subpoena Seeking Production of Text Messages Might Violate Stored Communications Act, Court Instructs Plaintiff to Serve Rule 34 Request for Production Instead
Posted on August 28, 2008Flagg v. City of Detroit, 2008 WL 3895470 (E.D. Mich. Aug. 22, 2008) In an earlier decision in this case, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of text messages. The court found that plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel...
Avoiding Question of Whether Third-Party's Compliance with Subpoena Might Violate Stored Communications Act, Court Instructs Plaintiff to Serve Rule 34 Request for Production Instead
Posted on August 28, 2008Flagg v. City of Detroit, 2008 WL 3895470 (E.D. Mich. Aug. 22, 2008) In an earlier decision in this case, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of text messages. The court found that plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel...
Magistrate Judge Imposes Monetary Sanctions and Recommends Adverse Inference Instruction, but not Dismissal, for "Reckless and Egregious Discovery Misconduct"
Posted on August 26, 2008Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008) In this patent infringement case, plaintiffs sought terminating, evidentiary and monetary sanctions based upon defendants' spoliation of evidence. Plaintiffs argued that defendants had destroyed three types of evidence: (1) source code; (2) early architectural, design and implementation documents; and (3) reports...
E-Discovery Amendments to California's Civil Discovery Act Now Awaiting Governor's Signature
Posted on August 21, 2008Assembly Bill 926 (Evans): Passed the Senate July 10, 2008; Passed the Assembly August 7, 2008 The amendments included in AB 926 closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. Among other things, the amendments: -- Establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, or land or other property, in the possession of any other party to the action...
Qualcomm's Appeal and Sanctioned Attorneys' Cross-Appeals Dismissed by Federal Circuit Court of Appeals
Posted on August 20, 2008Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California; No. 2008-1348, 1381 & 1382, United States Court of Appeals for the Federal Circuit In May 2008, Qualcomm filed an appeal in the U...
E-Discovery (Re)sources Abound
Posted on August 19, 2008By K&L Gates attorneys Todd L. Nunn and Trudy D. Tessaro This article appears in the August 2008 edition of the King County Bar Bulletin, and begins: Want to understand more about e-discovery, other than that the “e” stands for “excitement?” Need a little light summer reading? Well, you are in luck...
Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit
Posted on August 15, 2008Newman McIntosh & Hennessy v. Bush, Civ. No. 08-00787 (CKK) (D.D.C.) This lawsuit seeks declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted...
Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision
Posted on August 15, 2008Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008) In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time). UPS contended that Gippetti's termination had nothing to do with his age...
No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations
Posted on August 14, 2008In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008) In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions...
Magistrate Judge "Clearly Erred" by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test
Posted on August 14, 2008Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) In this wage and hour employment case, plaintiff sought documents about class members' employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files...
Production of ESI in Paper Format Does Not Comply with Rule 34 Option to Produce ESI in Reasonably Usable Form; Court Orders Re-Production of Certain ESI in Native Format
Posted on August 13, 2008White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) In this wrongful termination case, plaintiff moved for an order compelling defendants to, among other things, provide complete information on defendants' document retention policy and how such policy may have affected ESI responsive to certain discovery requests, and re-produce certain electronic documents in their native format...
Supermarket's Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident "Shocks the Conscience of the Court" and Warrants Adverse Inference Instruction
Posted on August 07, 2008Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008) In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle. She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity...
Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party's Production under Rule 34(b)(2)(E)
Posted on August 05, 2008Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008) In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez's 136 or more requests for production...
Court Denies Motion to Compel Production of Email from Backup Tapes
Posted on July 31, 2008Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. July 21, 2008) In this case, plaintiffs had requested that they be allowed to search the defendants' backup tapes in an attempt to discover whether other complaints were made to the district about the teacher who was at the center of the case...
Court Issues Fourth Order Regarding Forensic Inspection of Defendant's Computer Systems; Finds Defendant's Behavior Fell "Just Shy" of Conduct Befitting Default Judgment
Posted on July 21, 2008Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) In June 2007, the court had ordered, among other things, that defendant Globe Electric Supply Co. “submit to a forensic inspection of its computer systems which record its purchases and sales of Square D products and its inventory of such products, with such inspection to be incurred at Globe's sole expense and cost...
Liability for State Law Spoliation Cause of Action Does Not Result Simply from Failure to Implement Litigation Hold or Defects in Its Scope or Substance
Posted on July 16, 2008Ed Schmidt Pontiac-GMC Truck, Inc. v. Chrysler Motors Co., LLC, 2008 WL 2704859 (N.D. Ohio July 7, 2008) In this breach of contract litigation, the court had previously granted plaintiff leave to amend its complaint to add a state law cause of action for spoliation of evidence based on defendant’s failure to implement a litigation hold...
Court Denies Defendant's Post-Production Motion for Cost-Shifting as Untimely and Inappropriate in the Context of "Accessible" ESI
Posted on July 16, 2008Cason-Merenda v. Detroit Med. Ctr., 2008 WL 2714239 (E.D. Mich. July 7, 2008) In this class action litigation, defendant moved, pursuant to Fed. R. Civ. P. 26(c), for an order requiring plaintiffs to pay at least 50 percent of its third party vendor electronic discovery costs...
Court Grants Protective Order and Prevents Plaintiff from Inquiring About "Storage, Preservation and Backup of Emails" in Defendants' Rule 30(b)(6) Depositions
Posted on July 10, 2008Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008) In this case arising out of a homeowner’s insurance claim, defendants sought a protective order to prevent plaintiff from inquiring into various topics during defendants' Rule 30(b)(6) depositions...
Court Declines to Shift Cost of Forensic Examination Necessitated by Party's Own Actions and Inaction
Posted on July 09, 2008Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008) In a previous decision, Magistrate Judge John M. Facciola addressed the sufficiency of the search done by defendant Michael Faber for emails and other ESI in response to plaintiff’s discovery requests, and determined that it was "appropriate to ascertain the cost of forensic testing of the computers and server at issue to see if it justifies a forensic search of them...
Over 1,000 Cases Now Included in K&L Gates' E-Discovery Case Database
Posted on July 03, 2008We are pleased to announce that our searchable case database now contains over 1,000 e-discovery cases from state and federal jurisdictions, with new cases being added every week. Now more than ever, our database is an excellent source of information on developing e-discovery case law around the country...
Third Party Not Required to Produce Hard Drives to Plaintiff Competitor; Court Limits Subpoena and Allows Third Party to Conduct its Own Search
Posted on July 02, 2008Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008) In this case, Daimler sued its former employee in Oregon district court for breach of his duty of loyalty, his confidentiality contract, and his common law duty not to convert confidential and proprietary information, based upon the employee’s departure and subsequent employment by a competitor, Cascadia...
Court Grants Plaintiff's Motion for Discovery Sanctions, Enters $5,247,781 Default Judgment and Awards $645,760 in Attorneys' Fees and Costs
Posted on July 02, 2008S. New England Tel. Co. v. Global NAPs, Inc., 2008 WL 2568567 (D. Conn. June 23, 2008) In this case, plaintiff (“SNET”) alleged that Global NAPS, Inc. had misrouted long-distance traffic of certain circuits not designated for such traffic, thereby depriving SNET of applicable access charges, and that Global failed to pay SNET access charges specified in SNET's federal tariff for special access circuits Global ordered from SNET's tariff...
Sixth Circuit Finds Demonstrable Abuse of Discretion in Trial Court's Order Requiring Forensic Imaging of State-Owned and Privately-Owned Computers by Plaintiffs' Computer Expert with Assistance from U.S. Marshal
Posted on June 27, 2008John B. v. Goetz, 2008 WL 2520487 (6th Cir. June 26, 2008) In this case, state defendants sought mandamus relief from two discovery orders issued by the district court during the course of the class-action litigation. The district court had issued the orders after a discovery dispute arose regarding defendants' duty to preserve and produce ESI relevant to the litigation...
Iowa, Maryland and Nebraska Join States with Special E-Discovery Court Rules
Posted on June 19, 2008Nebraska On June 4, 2008, the Nebraska Supreme Court adopted amendments to Neb. Ct. R. of Discovery, 33, 34, and 34A that address the discovery of electronically stored information. The amended rules are available here, and went into effect June 18, 2008...
Current Listing of States That Have Enacted E-Discovery Rules
Posted on June 18, 2008More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Arizona Amendments to Rules of Civil Procedure 16, 26, 26.1, 33, 34, 37 and 45 Effective January 1, 2008 Connecticut Connecticut Practice Book, Superior Court – Procedures in Civil Matters Sec...
Production of Email in Native Format Satisfies Fed. R. Civ. P. 34(b)(2)(E)
Posted on June 12, 2008Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008) In this case, one of plaintiff’s requests for production sought emails -- plaintiff provided defendant with search terms and desired to have all emails that contained the relevant search terms...
Finding Waiver of Attorney-Client Privilege and Work Product Protection, Court Orders Production of Attorney Notes of Employee Interviews Concerning Intel's Compliance with Evidence Preservation Obligations
Posted on June 10, 2008In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (D. Del. June 4, 2008) In this decision, the district court adopted the Special Master’s Report and Recommendation concerning the Motion of AMD and Class Plaintiffs to compel Intel to produce notes of its counsel's investigation interviews of designated employees concerning Intel's compliance with its evidence preservation obligations (the “Weil Materials”)...
Client and Counsel Jointly and Severally Liable for Monetary Sanctions Based on Inadequate Search for and Untimely Production of ESI; Evidentiary Sanctions Also Recommended
Posted on June 05, 2008R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 (S.D. Cal. Apr. 18, 2008) After a fire destroyed plaintiff’s manufacturing facility, defendant paid plaintiff for loss of property, but plaintiff claimed that the value of all lost property exceeded the amount paid...
Plaintiff's Reformatting of Hard Drives Sought in Discovery Warrants Adverse Inference Instruction, Not Dismissal
Posted on June 05, 2008Johnson v. Wells Fargo Home Mortgage, Inc., 2008 WL 2142219 (D. Nev. May 16, 2008) In this case, plaintiff alleged that defendant erroneously reported two of his real property mortgage loans delinquent to credit reporting agencies. Plaintiff claimed that defendant foreclosed on one loan and continued to erroneously report both loans delinquent after plaintiff spent nine months making multiple phone calls and sending correspondence, including cancelled checks and loan documents, verifying the loans were current...
Finding that Production of Privileged ESI Effected Waiver, Court Describes Risks of Privilege Review Using Keyword Searches and Offers Guidance on Proper Assertion of Privilege
Posted on June 03, 2008Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008) In this case, plaintiff sought a ruling that 165 electronic documents produced by defendants were not privileged because their production occurred under circumstances that waived any privilege or protected status...
Maryland Law Firm Seeks Guidance on Whether Electronic Transmission of Data to Legal Process Outsourcing Company in India Waives Fourth Amendment Protections
Posted on May 27, 2008The law firm of Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, has filed a federal lawsuit seeking declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted...
SEC Proposes New Way for Investors to Get Financial Information on Companies
Posted on May 15, 2008Proposal Would Set New Electronic Records Management Requirements for U.S. CompaniesYesterday, the Securities and Exchange Commission voted unanimously to formally propose using new technology to get financial information to investors faster, more reliably, and at a lower cost...
E-Discovery Problem Solving for Paralegals
Posted on May 12, 2008Thursday, May 22, 20089 a.m. – 4:30 p.m. Washington State Convention & Trade Center 800 Convention Place Seattle , Washington This intermediate-to-advanced level seminar will provide attendees with practical strategies for handling emerging e-discovery issues...
E-Discovery Compliance Starts with Records Management Plan
Posted on May 08, 2008K&L Gates Pittsburgh partner David R. Cohen’s presentation at the recent RIMS 2008 Conference was highlighted in the May 5th edition of Business Insurance. At the San Diego event, Mr. Cohen recommended to the insurance industry crowd that companies create an e-discovery team and institute a records management plan...
Court Sets Protocol for Forensic Inspection of Plaintiff's Computer Systems
Posted on May 05, 2008Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008) In this case, plaintiff (a lawyer) brought claims under the Ohio Consumer Sales Practices Act based upon emails he received. Because only the unsolicited emails plaintiff received would support his claim under the Act, it was necessary for the parties to ascertain which of the emails plaintiff received were unsolicited...
Microsoft Device Helps Police Pluck Evidence from Cyberscene of Crime
Posted on April 29, 2008The Seattle Times, April 29, 2008 By Benjamin J. Romano, Seattle Times technology reporter Microsoft has developed a small plug-in device that investigators can use to quickly extract forensic data from computers that may have been used in crimes. The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB "thumb drive" that was quietly distributed to a handful of law-enforcement agencies last June...
Court Reminds Parties of Their Duty to Preserve and Enters Preservation Order
Posted on April 28, 2008In re Flash Memory Antitrust Litig., 2008 WL 1831668 (N.D. Cal. Apr. 22, 2008) The court's order, in its entirety, provides: All parties and their counsel are reminded of their duty to preserve evidence that may be relevant to this action. The duty extends to documents, data, and tangible things in the possession, custody and control of the parties to this action, and any employees, agents, contractors, carriers, bailees, or other non-parties who possess materials reasonably anticipated to be subject to discovery in this action...
Court Rejects Cost Shifting Since Moving Party Failed to Meet and Confer in Good Faith; Cost Estimate and Conclusory Characterizations of ESI as "Inaccessible" Insufficient Under Rule 26(b)(2)
Posted on April 24, 2008Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008) In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff...
Status Conference Today in Qualcomm, Inc. v. Broadcom Corp. Regarding Discovery Plan and Further Proceedings
Posted on April 22, 2008On March 20, 2008, the court convened a status hearing and counsel reported their progress toward developing the CREDO protocol ordered by the court. The court also conferred with the parties regarding the status of the case in light of Judge Brewster’s March 5, 2008 Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/07/08...
Risk and Insurance Management Society 2008 Annual Conference & Exhibition
Posted on April 17, 2008April 27 – May 1, 2008 San Diego Convention Center 111 West Harbor Drive San Diego, CA 92101 www.visitsandiego.com K&L Gates partner David R. Cohen will be one of the speakers presenting “An Ounce of Prevention: Your 12-Step Guide to Avoiding e-Discovery Disasters," on Monday, April 28 from 3:30 to 5:00 p...
U.S. Courts' Notice: Invalid Subpoenas
Posted on April 16, 2008The U.S. Courts' website (www.uscourts.gov) has the following alert:Reports have been received of bogus e-mail grand jury subpoenas, purportedly sent by a United States District Court. The e-mails are not a valid communication from a federal court and may contain harmful links...
Defense Attorneys Sanctioned for Obstructing Forensic Inspection of Defendant's Computer Servers
Posted on April 15, 2008Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008) In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information...
Court Further Refines Search Protocol, Adds Search Terms and Orders Distinct Conjunctive and Disjunctive Keyword Searches
Posted on April 11, 2008ClearOne Communications, Inc. v. Chiang, 2008 WL 920336 (D. Utah Apr. 1, 2008) This decision further refines the search protocol to be used to search data from computers used by certain defendants, which were imaged pursuant to two court orders issued in 2007...
Additional Information Needed Before Court Will Order Production of Email from Backup Sources
Posted on April 11, 2008Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008) Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights...
Party that Sought Metadata Only After Production of Document in .PDF and Paper Formats Not Entitled to Native Production
Posted on April 10, 2008Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 902957 (N.D. Ill. Apr. 2, 2008)In this trademark infringement litigation, defendant sought to compel Autotech to produce an electronic copy of a word processing document entitled “EZTouch File Structure...
Court Sets Protocol for Forensic Examination of Employment Discrimination Plaintiff's Home Computers
Posted on April 09, 2008Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. Mar. 28, 2008) In this employment discrimination case, defendants sought a forensic examination of plaintiff’s home computers. Defendants explained that the inspection would focus on information relating to Coburn's employment with defendants, the termination of that employment, allegations or claims Coburn was making in this action, and damages resulting from the actions or inactions of defendants...
Inadequate Preservation Efforts Necessitate Restoration and Production of Email from Backup Tapes, and Forensic Search of CEO's Laptop
Posted on April 08, 2008Treppel v. Biovail Corp., 2008 WL 866594 (S.D.N.Y. Apr. 2, 2008)In this case, plaintiff alleged that Biovail Corp., its CEO, general counsel and others engaged in a "smear campaign" that destroyed plaintiff's career as a securities analyst...
The Sedona Conference® Commentary on ESI Evidence & Admissibility
Posted on April 07, 2008March 2008Available for free download here.From the Introduction:During the last decade, culminating with the adoption of significant amendments to the Federal Rules of Civil Procedure (“FRCP”) on December 1, 2006, the legal community has expended significant energy and focus on electronic data...
Court Declines to Issue Advisory Opinion as to What Actions State Must Take to Properly Preserve Documents for Potential Suit
Posted on April 02, 2008Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008) In this case, the State of Texas sought a declaratory judgment and the court's protection from a general litigation hold request, initiated by a letter sent by the City of Frisco. The letter asked the Texas Department of Transportation to generally preserve all electronic data associated with a particular highway toll project, and referred to potential litigation regarding the environmental evaluation of the toll project...
Court Sets Protocol for Production and Review of Text Messages
Posted on March 31, 2008Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008) Plaintiff in this case is the minor son of a murder victim, whose murder remains unsolved. The complaint alleges that the defendants engaged in a laxity in investigation, deliberately ignored and actively concealed material evidence, and deprived the plaintiff of an opportunity to bring a wrongful death suit against the murderer...
Avoiding E-Discovery Pitfalls
Posted on March 31, 2008By K&L Gates partner David R. CohenThis article appears in the March 2008 edition of BizTech Magazine, and begins:If you’re not currently involved in litigation or an investigation and won’t be in the future, then e-discovery isn’t something your business needs to concern itself with...
Court Approves Retention of Independent Technology Expert to Build, Maintain and Operate Discovery Database to Ensure Consistency, Reliability and Accessibility of Information
Posted on March 28, 2008In re World Trade Ctr. Disaster Site Litig., 2008 WL 793578 (S.D.N.Y. Mar. 24, 2008) This litigation concerns claims relating to respiratory injuries suffered by rescue and clean-up workers as a result of exposure to toxins and other contaminants in the aftermath of the September 11, 2001 terrorist attacks...
4th Annual Life Sciences Counsel Guide to Document Management, E-Discovery, and Litigation Readiness
Posted on March 27, 2008Monday & Tuesday, March 31 & April 1, 2008 Doubletree Metropolitan Hotel 569 Lexington Avenue New York, NY 10022 K&L Gates partner David R. Cohen is a co-chair of this informative two-day conference. He and K&L Gates partner Martha J...
Federal Court Allows Plaintiff to Amend Complaint to Assert State Law Spoliation Cause of Action Based on Defendant's Failure to Implement Litigation Hold
Posted on March 27, 2008Ed Schmidt Pontiac-GMC Truck, Inc. v. DaimlerChrysler Motors Co., LLC, 2008 WL 668267 (N.D. Ohio Mar. 11, 2008) In this case, an automobile dealer brought suit alleging that DaimlerChrysler had breached a settlement agreement when it refused to grant the dealer a Chrysler franchise...
Magistrate Judge Orders Expedited Forensic Imaging of Defendants' Computers
Posted on March 24, 2008Xpel Techs. Corp. v. Am. Filter Film Distribs., 2008 WL 744837 (W.D. Tex. Mar. 17, 2008) In this brief order, the magistrate judge granted plaintiff’s motion for expedited computer forensic imaging, finding that good cause had been established. The magistrate judge ruled that the costs of the forensic imaging would be borne by the plaintiff, and articulated a number of protocols for the parties to follow: Computer forensic analysis will be performed by Digitalworks, located at 13333 N...
District Court Modifies Magistrate Judge's Order Requiring Production of Forensically Sound Copies of Defendant's Servers to Allow for Pre-Production Privilege Review
Posted on March 21, 2008Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax's India and Michigan servers) to plaintiffs' counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold...
No Sanctions Warranted for Failure to Produce "Smoking Gun" Email, Where Email System Did Not Retain Any Sent Emails
Posted on March 20, 2008Clearone Communications, Inc. v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008) In this case involving claims of misappropriation of trade secrets, breach of contract and conversion, plaintiff sought sanctions for two claimed wrongs: (1) defendants’ belated production of, and misrepresentations about, source code complete with developer comments; and (2) defendants’ failure to produce “smoking gun” email, which was produced by another party who was the recipient of the email...
Magistrate Judge Sets Protocol for Plaintiff's Forensic Examination of Former Employee's Computer and Requests Affidavit from Expert Explaining Certain Issues
Posted on March 17, 2008Equity Analytics, LLC v. Lundin, 2008 WL 615528 (D.D.C. Mar. 7, 2008) In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired. Defendant explained that another Equity employee had granted him permission to use the employee’s username and password to access a particular Equity computer system...
District Court Lifts Sanctions Against Six Qualcomm Attorneys, Remands Attorney Sanctions Issue to Magistrate Judge to Allow Attorneys to Defend Selves Fully
Posted on March 07, 2008On March 5, 2008, District Judge Rudi M. Brewster issued his Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/7/08. The order vacated and remanded that portion of the January 7 Sanctions Order imposing sanctions against Qualcomm's six outside counsel...
Bald Assertions of Burden Insufficient Under Rule 26(b)(2)(B); Ball Club Ordered to Produce Remaining Email Using Previously Agreed-Upon Search Terms
Posted on March 05, 2008City of Seattle v. Prof'l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008) The discovery dispute in this decision involved the City of Seattle's request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members...
ABA TechShow 2008 is March 13-15 in Chicago
Posted on March 04, 2008March 13-15, 2008 Hilton Chicago 720 South Michigan Avenue Chicago, IL 60605 ABA TechShow 2008 offers more than 50 education and training sessions in 16 different tracks. Sessions are designed to help people at various skills levels learn to make the most effective use of technology in their legal setting...
Court Finds Deleted Email "Not Reasonably Accessible"; No Duty to Search Backup Tapes for Emails of a Sexual Nature
Posted on March 04, 2008Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008) In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period...
Now Watch the Lawyers Blitz -- The NFL destroyed the tapes. But it still hasn't escaped the sack.
Posted on March 03, 2008Appearing in this week’s Legal Times, an article by K&L Gates partner Thomas J. Smith entitled: Now Watch the Lawyers Blitz -- The NFL destroyed the tapes. But it still hasn’t escaped the sack. (Free registration required to view...
Attorneys Who Erroneously Relied on Client's Defective Search Methods Were Merely Negligent and Not Acting in Bad Faith; Monetary Sanctions Imposed Against Client Only
Posted on March 03, 2008Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008) In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA. Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home...
Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court
Posted on February 29, 2008On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective. The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5...
Qualcomm Accepts Sanctions Issued by Magistrate Judge and Pays Entire $8,568,633.24 Sanction to Broadcom
Posted on February 28, 2008In its Reply to Broadcom Corporation’s Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge filed on February 20, 2008, Qualcomm states that it acccepts the sanctions imposed by Magistrate Judge Barbara Lynn Major and is not appealing or filing any objections to the January 7, 2008 Sanctions Order...
Senate Passes Proposed Evidence Rule 502
Posted on February 27, 2008On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The bill now goes on to be voted on in the House of Representatives. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007...
Defense Counsel's Unilateral Modification of Parties' Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email
Posted on February 26, 2008Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008) This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants. After defense counsel objected to plaintiffs' requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004...
K&L Gates' E-Discovery Case Database Has Fresh New Look, More Features, and Now Over 900 Cases
Posted on February 20, 2008We are pleased to announce that we have enhanced our searchable e-discovery case database and have added a number of new attributes – several of which correspond with the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. For example, you can now select the attribute “FRCP 37(e) Safe Harbor,” click “Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule...
Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
Posted on February 11, 2008At least 38 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery...
Notwithstanding Objections to Magistrate Judge's January 7 Order, Sanctioned Attorneys Appear and Participate in CREDO Program
Posted on February 06, 2008On January 29, 2008, attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young, as well as certain Qualcomm in-house attorneys, appeared before United States Magistrate Judge Barbara L. Major, as directed in her January 7, 2008 Order...
Court Declines to Order Production of Metadata Where Request for Production Did Not Specify Production in Original Format, and Orders Evidentiary Hearing on Spoliation Allegations
Posted on January 28, 2008D'Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008) In this contentious employment discrimination case, Magistrate Judge John M. Facciola resolved a number of discovery disputes relating to the production of electronically stored information...
Managing Discovery of Electronic Information: A Pocket Guide for Judges
Posted on January 25, 2008By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins Federal Judicial Center (2007) This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them...
Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues
Posted on January 24, 2008At least 37 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery...
List of States Actively Considering the Adoption of Special E-Discovery Court Rules
Posted on January 22, 2008A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information. Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials...
Virginia Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments
Posted on January 21, 2008The Virginia Supreme Court's Advisory Committee on Rules of Court has unanimously concluded that it should publish a Tentative Draft of possible rules amendments on the topic of electronic discovery. The Tentative Draft takes into account the detailed comments on an initial discussion draft circulated several months ago...
Alaska Supreme Court Seeks Public Comment on Proposed E-Discovery Amendments
Posted on January 18, 2008The Alaska Supreme Court is now seeking public comment on a proposal to amend the Alaska Rules of Court to align Alaska’s discovery rules with the December 2006 federal rules amendments addressing the discovery of electronically stored information...
Chart Highlights White House E-Mail Gap
Posted on January 18, 2008From a January 18, 2008 article by Pete Yost of the Associated Press: A White House chart indicates no e-mail was archived on 473 days for various units of the Executive Office of the President, a House committee chairman says. Rep. Henry Waxman, D-Calif...
Ohio Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments
Posted on January 17, 2008The Supreme Court of Ohio is now accepting public comments on proposed amendments to the Ohio Rules of Civil Procedure addressing electronic discovery. The amendments to Rules 16, 26, 33, 34, 36, 37, and 45 are based on the December 2006 amendments made to the Federal Rules of Civil Procedure...
Current Listing of States That Have Enacted E-Discovery Rules
Posted on January 17, 2008More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. Here is a current list with links to the relevant provisions. Arizona Amendments to Rules of Civil Procedure 16, 26, 26.1, 33, 34, 37 and 45 Effective January 1, 2008 Connecticut Connecticut Practice Book, Superior Court – Procedures in Civil Matters Sec...
White House Responds to Questions Posed by Magistrate Judge John M. Facciola Regarding Backup Media and Email
Posted on January 17, 2008Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 15, 2008) On January 15, 2008, a declaration authored by the White House’s Chief Information Officer was filed in response to the Court’s January 8 Order, discussed in our January 10, 2008 post on the subject...
California Judicial Council Seeks Public Comment on Proposed E-Discovery Amendments
Posted on January 16, 2008To modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information, the Judicial Council of California has proposed amending California’s Civil Discovery Act and two rules in the California Rules of Court on the management of civil cases...
Microsoft E-Discovery Summits
Posted on January 11, 2008Please join us for in-depth information and discussion about the legal impact of recent amendments to the Federal Rules of Civil Procedure. Hosted by Microsoft and featuring speakers from K&L Gates, these summits will help equip your company to comply with evolving federal e-discovery requirements and help avoid costly penalties...
Arkansas Supreme Court Approves Amendments to Evidence Rule 502 and Civil Procedure Rule 26(b)(5) to Address Inadvertent Disclosure of Privileged Information or Work Product
Posted on January 11, 2008On January 10, 2008, the Arkansas Supreme Court accepted the Committee on Civil Practice’s proposals for changes in the Arkansas Rules of Civil Procedure and Rules of Evidence to address the inadvertent disclosure of information protected by the attorney-client privilege, or any other evidentiary privilege, or the work product doctrine...
Court Orders White House to Provide Additional Information About Backup Media Being Preserved
Posted on January 10, 2008Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008) This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers...
Court Sanctions Qualcomm $8,568,633, Orders Certain In-House and Former Outside Counsel to Participate in "Case Review and Enforcement of Discovery Obligations" Program, and Refers Investigation of Possible Ethical Violations to California State Bar
Posted on January 08, 2008Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) On Monday, January 7, 2008, United States Magistrate Judge Barbara L. Major issued her Order on Broadcom’s Motion for Sanctions related to Qualcomm’s failure to produce tens of thousands of documents that Broadcom had requested in discovery...
The Computer Forensics Show
Posted on January 07, 2008Washington Convention Center 801 Mt. Vernon Place NW Washington, DC 20001 February 4-6, 2008 K&L Gates partner David E. Cohen will be presenting the opening day keynote address at this inaugural computer forensics event. David’s presentation, entitled "A Litigation ‘Perfect Storm’: Why Data Proliferation and E-Discovery are Battering U...
Texas Appellate Court Upholds Discovery Order Requiring Party to Allow Opposing Party's Expert to Create Mirror Images of Office Computer Hard Drives
Posted on January 07, 2008In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007) Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents...
County's "Foot Dragging" in Discovery and Failure to Implement Legal Hold Warrant Monetary Sanctions, but not Default Judgment or Adverse Inference Instruction
Posted on January 03, 2008Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007) In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction. The email dispute was first brought to the court's attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County...
Terminating Sanctions Warranted for Willful Spoliation of Evidence
Posted on December 16, 2007Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions) The court imposed terminating sanctions and entered default judgment against defendants in this copyright litigation as a result of defendants’ willful spoliation of key evidence...
Uniform Rules Relating to the Discovery of Electronically Stored Information Approved and Recommended for Enactment
Posted on December 16, 2007The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.The NCCUSL describes the Uniform Rules as follows: The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery of electronic documents in civil cases...
Bill Introduced to Enact Evidence Rule 502
Posted on December 15, 2007On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007...
Defendant's Disposal of Laptop and Untruthful Testimony about Circumstances of Disposal Warrant Adverse Inference Instruction and Relaxed Burden of Proof for Plaintiff
Posted on December 14, 2007Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007) This insurance coverage litigation stemmed from property damage caused by Hurricane Katrina in 2005. Plaintiff Great American contended that there was a mutual mistake of fact in connection with the formation of the insurance contract, arguing that the parties, acting through their agents, understood that wind damage coverage was excluded...
Native Production Warranted Where Alleged Backdating of Documents is at the Heart of Parties' Dispute
Posted on December 14, 2007Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007) In this letter opinion, the court ruled upon a number of discovery disputes, including one relating to the format of production. Plaintiff sought an order compelling a defendant to respond to documents requests “in native file format, with original metadata, but without a separate production of metadata...
Florida Supreme Court Denies Review of Decision Reversing $1.58 Billion Judgment Against Morgan Stanley
Posted on December 14, 2007Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., No. SC07-1251 (Fla. Dec. 12, 2007)In a brief order issued on December 12, 2007, the Florida Supreme Court denied Coleman (Parent) Holdings, Inc.’s petition for review of the Florida state appellate court decision which reversed the $1...
Good Cause Exists for Production of "Not Reasonably Accessible" Claims Information
Posted on December 13, 2007W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007) In this case, plaintiffs sued the third-party administrator of their employee medical benefits plans, alleging that it breached its fiduciary duty and the underlying contract by failing to perform its duties in a reasonably prudent manner...
Defendant Former Employer Entitled to Forensic Inspection of Plaintiff's Home Computer, at Defendant's Expense
Posted on December 12, 2007Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007) In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation. Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant's customers...
Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information
Posted on December 12, 2007Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007) In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes. Among other things, the judge found: That defendant conducted “an adequate and full search of all ESI formatted documents that may be relevant to the issues before this court and which are in [defendant’s] possession...
District Court Sustains Plaintiff's Objection to Magistrate Judge's Order Requiring Restoration and Production of Database Prepared in Separate Litigation
Posted on December 10, 2007Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 4230806 (D. Minn. Nov. 29, 2007) Best Buy sued its landlords for fraud, breach of contract, breach of fiduciary duty and declaratory judgment, claiming that they overcharged insurance and maintenance costs for common areas...
Sixth Circuit Stays District Court's Order Allowing Plaintiffs' Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies' Computer Systems
Posted on December 10, 2007John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007 and Dec. 7, 2007) This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs...
Avoiding E-Discovery Disasters
Posted on December 04, 2007Tuesday, December 11, 2007 12 p.m. Luncheon & Program Sheraton Station Square 300 West Station Square Drive Pittsburgh, PA 15219 K&L Gates partner David R. Cohen will discuss how to avoid the pitfalls in litigation surrounding e-discovery requests at an upcoming program hosted by the Pittsburgh Chapter of Risk and Insurance Management Society, Inc...
Court Sets Protocol for Production of ESI by Non-Party Individual
Posted on December 03, 2007In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007) In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi...
Sanctions Warranted for Failure to Comply with Court's Production Order and Failure to Implement Litigation Hold
Posted on December 01, 2007Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007) In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation...
The Biggest Data Disaster Ever
Posted on November 30, 2007From The Red Tape Chronicles, Posted: Friday, November 30 at 05:15 am CT by Bob Sullivan:"It's being called the worst data leak of the information age. Earlier this month, U.K. officials had to admit they'd lost hard drives containing personal information on almost half the country's population, including nearly all families with children...
Related Law Questions
Can eDiscovery be implemented in companies that have data stored remotely?
Remotely stored data definitely needs to be provided with ample security since t...
Legal ediscovery for a compliant organization?
eDiscovery is an evolving field that has come as a boon to technicians across th...
Good practices for stable ediscovery process?
eDiscovery has brought about great benefits in areas of document control and pro...
What are eDiscovery solutions?
e Discovery is a concept that is much sought after in large multinationals that ...
#1 Online Legal Resource
On 08-28 at 21:13PM
Ten months later, Fed must reveal names of emergency lending recipients #FOIA
On 08-25 at 19:02PM
Squeaky Fromme, would-be Ford assassin and Manson devotee, released from prison
On 08-14 at 15:19PM
Likely unintended consequence of cash-for-clunkers stimulus is dampening of 2010 spending
On 08-14 at 14:34PM
Palm seeks to halt Palm Pre Android theme on copyright and trademark ground
On 08-12 at 17:30PM
Congressional investigation demonstrates Karl Rove lied about his active role in US attorney's firing
On 08-12 at 16:20PM
Family of New York City swine flu victim to sue city for failure to secure school #nyc #swineflu
On 08-12 at 12:59PM
Real Network's DVD copying software deemed to break DMCA's anti-circumvention provisions
On 08-12 at 12:57PM
Prepaid funeral operators indicted for $100 Million fraud
On 08-12 at 12:53PM
NY Jets join Cincinnati, Dallas, Green Bay, Houston & Seattle #NFL teams offering branded state lottery games
On 08-12 at 12:43PM
Are you the author of this blog? Adding USLaw.com to your Blogroll increases relevance. You qualify to display a USLaw Network badge.
Suggest changes to this blog's description or nominate another for inclusion. Register for updates.
Can eDiscovery be implemented in companies that have data stored remotely?
Remotely stored data definitely needs to be provided with ample security since t...
Legal ediscovery for a compliant organization?
eDiscovery is an evolving field that has come as a boon to technicians across th...
Good practices for stable ediscovery process?
eDiscovery has brought about great benefits in areas of document control and pro...
What are eDiscovery solutions?
e Discovery is a concept that is much sought after in large multinationals that ...
 |
|
Contact Us | About Us | Celebrity Law Blog |
Our Partners | Disclaimer
| Law Blog Directory
| Law Jobs
| Law Tweets
| GoDaddy Hosting
All original material © 1999-2009 by USLaw.com. |