Litigation

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, 2009
Preferred 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, 2009
Phillip 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, 2009
State 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, 2009
U.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...

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Vendor's Mistake Results in Inadvertent Production, Court finds No Waiver

Posted on March 30, 2009
Heriot 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, 2009
White 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, 2009
Anthropologie, 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, 2009
William 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, 2009
Technical 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, 2009
ACORN 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, 2009
State 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, 2009
On 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, 2009
Bray & 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, 2009
On 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, 2009
On 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, 2009
Smith 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, 2009
Indep. 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, 2009

Court Considers Zubulake Factors, Denies Defendant's Motion to Shift Cost of OCR Processing

Posted on February 26, 2009
Proctor & 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, 2009
Brookdale 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, 2009
The 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, 2009
Kvitka 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, 2009
CNET 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, 2009
Hynix 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, 2009
The 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, 2009
Mintel 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, 2009
In 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, 2009
SEC 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, 2009
Arista 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, 2009
U.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...

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