Litigation

Production of Email in Native Format Satisfies Fed. R. Civ. P. 34(b)(2)(E)

Posted on June 12, 2008
Perfect 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, 2008
In 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, 2008
R & 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, 2008
Johnson 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...

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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, 2008
Victor 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, 2008
The 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, 2008
Proposal 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, 2008
Thursday, 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, 2008
K&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, 2008
Ferron 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, 2008
The 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, 2008
In 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, 2008
Mikron 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, 2008
On 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, 2008
April 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, 2008
The 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, 2008
Sterle 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, 2008
ClearOne 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, 2008
Baker 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, 2008
Autotech 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, 2008
Coburn 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, 2008
Treppel 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, 2008
March 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, 2008
Texas 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, 2008
Flagg 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, 2008
By 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, 2008
In 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, 2008
Monday & 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, 2008
Ed 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, 2008
Xpel 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...

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