Litigation

House Passes Proposed Evidence Rule 502

Posted on September 10, 2008
On 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, 2008
Infinite 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, 2008
Atlantic 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, 2008
K&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...

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The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible

Posted on September 03, 2008
July 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, 2008
Flagg 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, 2008
Flagg 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, 2008
Keithley 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, 2008
Assembly 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, 2008
Qualcomm 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, 2008
By 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, 2008
Newman 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, 2008
Gippetti 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, 2008
In 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, 2008
Tierno 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, 2008
White 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, 2008
Bright 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, 2008
Suarez 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, 2008
Young 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, 2008
Square 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, 2008
Ed 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, 2008
Cason-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, 2008
Cunningham 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, 2008
Peskoff 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, 2008
We 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, 2008
Daimler 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, 2008
S. 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, 2008
John 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, 2008
Nebraska 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, 2008
More 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...

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