Litigation

European Commission Announces Intention to Strengthen EU Data Protection Rules

Posted on November 19, 2010
In a press release dated November 4, 2010, the European Commission outlined its goal of reviewing and amending its Data Protection Directive to address 'challenges raised by new technologies and globalisation.'  The press release announces the Commission's intention to 'put forward legislation next year to strengthen individuals' rights while also removing red tape to ensure the free flow of data within the EU's Single Market' and sets forth a 'series of key goals', including '[s]trengthening individuals' rights,' '[e]nsuring high levels of protection for data transferred outside the EU,' and '[m]ore effective enforcement of the rules...

Upcoming Events -December

Posted on November 12, 2010
Thomson Reuters 14th Annual Electronic Discovery and Records Retention Conference – Achieving Practical Proportionality Dec. 1-2, 2010 San Francisco Marriott Marquis 55 4th St. San Francisco, CA 94103 K&L Gates Partner Julie Anne Halter will participate in this conference which will address a myriad of topics, including e-discovery in all cases, proportionality, early case assessment, litigation with the government and much more...

e-Discovery in Oklahoma

Posted on November 03, 2010
As of November 1, 2010, Oklahoma's Code of Civil Procedure specifically provides for the discovery of electronically stored information ('ESI').  Closely mirroring the Federal Rules of Civil Procedure, the Code addresses issues including the identification of 'not reasonably accessible' information, the format of production, and sanctions for the loss of ESI resulting from the routine, good-faith operation of an electronic information system...

Court Imposes Adverse Inference for Failure to Preserve Text Messages Related to Criminal Investigation

Posted on November 03, 2010
United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (Not for Publication) For the Government's failure to preserve text messages sent between investigating agents and a cooperating witness, the court found sanctions were warranted and ordered that the jury would received a 'spoliation charge' allowing (but not requiring) it to infer that the deleted messages were favorable to the defendants...

To access this complete feed in the blog feed reader login or register for free.

Where "Entire Computer and Component Manufacturer's Industry" was on Notice of Potential for Litigation, Defendant's Failure to Preserve Warrants Sanctions

Posted on October 28, 2010
Phillip M. Adams & Assoc., LLC v. Windbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010) In this ongoing multi-defendant patent litigation, the court has previously addressed allegations of spoliation.  In March 2009, the court found sanctions were warranted for defendant ASUS Computer International's violation of its duty to preserve which arose in the '1999-2000 environment' of litigation surrounding the technology to resolve a defect in a particular floppy disk controller ('FDC')...

Court Orders Production of Plaintiff's User Names and Passwords for Social Network Accounts

Posted on October 21, 2010
McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010) In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff's social network accounts and requested production of his user names, log-in names, and passwords...

Metadata is Subject to Disclosure Pursuant to Washington's Public Records Act

Posted on October 15, 2010
O'Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010) In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington's Public Records Act ('PRA')...

Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Posted on October 14, 2010
Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010) Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information.  Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years...

Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery

Posted on October 06, 2010
Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery.  The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today...

Building Your e-Discovery Toolkit

Posted on October 05, 2010
By Julie Anne Halter, K&L Gates This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division. In 2007, the 'digital universe' contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2...

Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using "Reply All"

Posted on October 05, 2010
Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010) In this case, as the result of using the 'reply all' function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant's counsel sent an email to opposing counsel demanding the email be deleted...

Court Finds No Waiver of Privilege as to Emails Inadvertently Produced by Third Party and No Waiver Resulting from Use of Company Email Account and Laptop to Communicate with Counsel

Posted on September 30, 2010
DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010) In this case, the court addressed the question of waiver as to nine privileged emails.  As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production...

Finding No Reasonable Expectation of Privacy in Plaintiff's Social Networking, Court Compels Authorization to Disclose Current and Historical Content

Posted on September 28, 2010
Romano v. Steelcase, Inc., 2010 WL 3703242 (N.Y. Sup. Ct. Sept. 21, 2010) Defendant sought to discover plaintiff's 'current and historical Facebook and MySpace pages and accounts', including deleted information, on the belief that information posted there was inconsistent with her injury claims...

Court Orders Mirror Imaging to Ensure Preservation During Ongoing Discovery But Declines to Compel Production of Plaintiff's Computer to Defendants

Posted on September 24, 2010
Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010) In this case, both parties moved for spoliation sanctions alleging destruction of emails.  Defendants also sought to compel production of certain emails and plaintiff's personal computer and storage devices to ensure she was not withholding evidence...

The Sedona Conference Publishes 2010 Update to its Commentary on Legal Holds and the Third Edition of The Sedona Conference Glossary

Posted on September 16, 2010
The Sedona Conference, a charitable research and education institute 'dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights' recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, 'reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process...

The Sedona Conference® Publishes 2010 Update to its Commentary on Legal Holds and the Third Edition of The Sedona Conference Glossary

Posted on September 16, 2010
The Sedona Conference®, a charitable research and education institute 'dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights' recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, 'reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process...

The Grimm Truth About Spoliation

Posted on September 13, 2010
Victor Stanley, Inc. v. Creative Pipe, Inc., No. MJG-06-2662 (D. Md. Sept. 9, 2010) For willful, bad faith discovery violations, including failure to implement a litigation hold, attempted deletion of ESI, actual deletion of ESI, and misrepresentations regarding the completeness of discovery, the Court recommended default judgment and a permanent injunction as to plaintiff's copyright claim and ordered monetary sanctions and that defendants' acts of spoliation be treated as contempt such that an individual defendant, the President of Creative Pipe, be jailed for not more than two years 'unless and until' he pays the attorney's fees and costs awarded...

Son's Receipt of Privileged Emails Did Not Result in Waiver where Son was a "Necessary Conduit in Delivering" Attorney's Emails to Plaintiffs

Posted on September 03, 2010
Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010) In this day in age, it is easy to believe that everybody is familiar with email.  That is not always the case.  In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs' attorney-client privilege was waived as a result of their son's receipt of privileged emails where it was established that the son's assistance was necessary to ensure plaintiffs' timely receipt of the emails, in light of plaintiffs' lack of email proficiency...

Court Finds No Spoliation as to Documents Produced from Backup Tapes because "Documents Were Never in Fact Destroyed"

Posted on August 30, 2010
Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010) In this post-award bid protest, plaintiff sought spoliation sanctions for defendant's destruction of relevant documents.  Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes...

In "'David-And-Goliath-Like' Struggle for Electronic Discovery", Court Orders Adverse Inference, Monetary Sanctions for Spoliation and Delay

Posted on August 27, 2010
Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010) For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was 'at a minimum' negligent and indicated that an adverse inference would be crafted after all the evidence had been received...

Despite Negligent Preservation, Failure to Establish Relevance of Lost Emails Results in Denial of Motion for Sanctions

Posted on August 26, 2010
Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010) In this employment discrimination case, the court denied the pro se plaintiff's motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence 'tending to show that the destroyed emails would have been favorable to his case...

Court Compels Production of Relevant Content from Social Networking Sites

Posted on August 13, 2010
EEOC v. Simply Storage Mgmt., LLC, No. 1:09-cv-1223-WTL-DML (S.D. Ind. May 11, 2010) The EEOC, on behalf of two claimants, filed claims alleging sexual harassment.  In the course of discovery, defendant sought production of claimants' internet social networking site ('SNS') profiles and other communications from claimants' Facebook and MySpace...

Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on "Minimal Evidence" Presented that "It Is Not Clear that [Defendant] Spoliated Evidence"

Posted on August 10, 2010
Phillip M. Adams & Assoc. LLC v. Windbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21, 2010) In March 2009, the court granted in part plaintiff's motion for sanctions and ordered the parties to present evidence of prejudice before crafting an appropriate sanction...

Court Grants Defendant's Motion for Entry of Clawback Provision

Posted on August 06, 2010
Rajala v. McGuire Woods LLP, 2010 WL 2649582 (D. Kan. July 22, 2010) Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims.  The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the court to enter such a provision...

Court Orders Dismissal as Sanction for Egregious Discovery Violations

Posted on August 04, 2010
Aliki Foods, LLC v. Otter Valley Foods, Inc., 2010 WL 2982989 (D. Conn. July 7, 2010) Defendant moved to dismiss plaintiff's claims as a sanction for discovery violations.  Finding that plaintiff 'acted willfully and in bad faith in repeatedly violating its discovery obligations and [the] Court's orders', including failing to timely respond to discovery despite a court order to do so and defying a court order to allow forensic examination of certain hard drives by giving its computers away without first searching them, the court granted defendant's motion...

Court Approves Order for Preservation of Documents and Tangible Things in Toyota Litigation

Posted on August 04, 2010
In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, and Prods. Liab. Litig., 2010 WL 2901798 (N.D. Cal. July 20, 2010) On July 20, 2010, the District Court entered an Order for the Preservation of Documents and Tangible Things which was submitted by the parties...

New York Court Provides Detailed Instruction on Protocol for Discovery of Cloned Hard Drive

Posted on July 29, 2010
Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010) In this matrimonial action, plaintiff sought access to her husband's (the defendant) office computer to determine his true financial condition.  After denying plaintiff's initial motion, the court directed (by stipulated order) that a clone of defendant's office hard drive be made at plaintiff's expense...

Upcoming Events - August

Posted on July 26, 2010
Strafford Publications E-Discovery Cost Containment Legal Strategies:  Leveraging Economical Litigation Agreements, E-Mediation, and Other Emerging Tools August 19, 2010 Webinar/Teleconference 10:00 – 11:30 AM PDT This CLE webinar will provide counsel with strategies to contain e-discovery costs without sacrificing quality or increasing legal risks or potential court sanctions...

Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes

Posted on July 23, 2010
Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010) Observing that plaintiff and counterdefendants had insisted upon 'a review process that guarantees that they will not finish this extensive project in any reasonable amount of time', namely reviewing large volumes of information without first narrowing the material using search terms, the court acknowledged the need to expedite production and directed plaintiff and counterdedendants to retain a third party vendor to assist in their discovery efforts...

Citing Rule 37(e), Court Denies Spoliation Sanctions Despite the Existence of a Duty to Preserve

Posted on July 14, 2010
Oslon v. Sax, 2010 WL 2639853 (E.D. Wis. June 25, 2010) Citing a lack of evidence that defendants 'engaged in the ‘bad faith' destruction of evidence for the purpose of hiding adverse evidence' and Fed. R. Civ. P. 37(e), the court denied plaintiff's motion for sanctions for defendants' destruction of relevant videotape, despite the existence of a duty to preserve...

Bloggers, promote your law blog by nominating your blog for inclusion in USLaw.com's Law Blog Directory and RSS Reader. Benefits described.