Litigation

Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party

Posted on July 08, 2010
Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010) Defendants sought production of electronically stored information for a period of 18 years - a significant departure from the default period of five years previously imposed...

Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production

Posted on June 30, 2010
Major Tours, Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010) Appealing an order from the magistrate judge, plaintiffs argued that defendants should bear the costs of producing inaccessible data where it was defendants' failure to preserve that resulted in the data's inaccessibility...

Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys' Fees and Costs Ordered as Sanction for Failure to Preserve

Posted on June 28, 2010
Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010) Finding 'willful' spoliation of 43 hard drives 'in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary steps to do so', a special master ordered a jury instruction which allowed the jury to infer that the destroyed evidence was unfavorable to plaintiff and for the parties to split the cost of defendants' litigation of the spoliation issue...

Upcoming Events - July

Posted on June 24, 2010
Washington Defense Trial Lawyers Annual Meeting and Convention July 22-25, 2010 Suncadia Resort, Washington On Friday, July 23rd at 9:45 AM, join K&L Gates Partner Todd Nunn for his presentation entitled, 'E-Volving Discovery:  Dealing with ESI in the Discovery Process'...

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Government Employer's Search of Employee's Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment

Posted on June 17, 2010
City of Ontario v. Quon, 2010 WL 2400087 (U.S. June 17, 2010) Yesterday, the U.S. Supreme Court issued its opinion in City of Ontario v. Quon, a case addressing whether a government employer's search through an employee's text messages, sent and received on a work-issued pager, violated the Fourth Amendment...

Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments

Posted on June 11, 2010
Crispin v. Christian Audigier, Inc., 2010 WL 2293238 (C.D. Cal. May 26, 2010) Defendant subpoenaed several social networking sites seeking disclosure of plaintiff's subscriber information and communications relevant to the underlying dispute.  Plaintiff sought to quash the subpoenas arguing that such disclosure would violate the Stored Communications Act ('SCA')...

Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant

Posted on June 07, 2010
Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) Despite receipt of plaintiff's EEOC claim alleging employment discrimination, defendant failed to institute a litigation hold.  Instead, defendant identified three individuals likely to possess responsive information and asked them to identify and preserve relevant evidence...

Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes

Posted on June 04, 2010
Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D. Ark. May 27, 2010) In this collective action brought under the Fair Labor Standards Act, plaintiffs and defendant reached significant impasse regarding the appropriate scope of discovery, including disagreement regarding search terms, the number and identity of custodians, the sources of data to be searched, and who should bear the costs...

Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program

Posted on June 02, 2010
Last month, the Seventh Circuit's Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a 'multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure', the first phase of the program ended on May 1, 2010, after a seven month period in which the committee's Principles Relating to the Discovery of Electronically Stored Information were tested in practice...

For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law

Posted on June 02, 2010
Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010) For defendant's and counsels' discovery violations discovered with the assistance of a special master, including failing to adequately search for responsive material and misrepresenting search efforts to the court, the court indicated a likelihood that it would find as a matter of law that an agency relationship existed between defendant and another entity implicated in the underlying accident claims...

Judge Scheindlin Amends Recent Pension Opinion

Posted on June 01, 2010
On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC.  The order provides important clarification regarding the scope of a party's obligation to collect records from its employees...

Failure to Test Keywords by Sampling a Prominent Consideration in Court's Finding of Waiver

Posted on May 24, 2010
Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010) Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived. In this case, the court addressed a number of issues, including the parties' compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails...

Court Order Provides Students, Parents Opportunity to View Images Captured by School-Issued Laptops

Posted on May 20, 2010
For anyone who hasn't heard, a school district in Pennsylvania has recently come under fire for using the webcams on school-issued laptops to capture images of students both during and outside of school hours – about 56,000 of them, according to reports...

Upcoming Events

Posted on May 19, 2010
Washington State Bar Association: Washington Civil Procedure: Let's Do it Right! – How to Navigate Washington's Civil Rules for Your Client's Benefit May 26, 2010 8:25 AM - 4:45 PM Red Lion Hotel, Emerald Ballroom II 1415 Fifth Avenue Seattle, WA K&L Gates Partner Todd Nunn will present a discussion entitled, 'Electronic Discovery: What You Must Know to Correctly Steer Your Client'...

Federal pilot program curbs e-discovery fights

Posted on May 14, 2010
From The National Law Journal: By: Leigh Jones May 13, 2010 The results of the first phase of a closely watched federal court pilot program on electronic discovery show that having a set of fair-play rules at the outset of a case helps quell pretrial brawls between parties...

Court Orders Monetary Fine for Gross Negligence and Intentional Spoliation of ESI, Including Emails, Text-Messages, and Skype Messages

Posted on May 11, 2010
Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010) Upon finding that defendants spoliated relevant information, including emails, Skype messages, and computer logs, the court declined to order an adverse inference, to preclude defendants from the presentation of arguments implicating the discarded documents, or to order defendants to pay plaintiff's costs, but ordered monetary sanctions in the amount of $10,000, after balancing '2FA's litigation conduct with its status as a small corporation...

North Carolina Bar Association Issues Proposed Ethical Opinions Approving Use of SaaS, Providing List of Considerations to Minimize Risk

Posted on May 10, 2010
In what may be the first opinion of its kind, the North Carolina Bar Association has drafted a proposed ethical opinion addressing lawyers' use of 'software as a service' ("SaaS").  The proposed opinion concludes that lawyers 'may contract with a vendor of software as a service provided the risks that confidential client information may be disclosed or lost are effectively minimized...

Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve

Posted on May 07, 2010
Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) In this case, the court ordered sanctions for defendants' failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records and where that data was lost as the result of the flash drive's failure...

Delaware County Establishes New Complex Commercial Litigation Division, Requires Early Consideration of Electronic Discovery

Posted on May 07, 2010
Effective May 1, 2010, New Castle County, Delaware, has created a new division known as the Complex Commercial Litigation Division.  Available for prescribed categories of cases, including cases with an amount in controversy of more than $1 million (excluding certain types of actions, including, e...

Trial Court Abused Discretion in Ordering Forensic Examination Absent Pending Request for Production or Motion to Compel and in Appointing Special Master

Posted on April 26, 2010
In re Art Harris, 2010 WL 1612205 (Tex. App. Apr. 22, 2010) In this case, the appellate court granted petitioner's writ of mandamus and ordered the withdrawal of three underlying discovery orders upon finding that the trial court abused its discretion when it ordered the production of petitioner's hard drives for forensic examination and when it appointed a special master to conduct that examination...

United States Supreme Court Hears Argument on Expectation of Privacy as to Text Messages on Work Pager

Posted on April 22, 2010
Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008);  City of Ontario v. Quon (08-1332) In the summer of 2008, the Ninth Circuit held that a city employee had a reasonable expectation of privacy as to personal text-messages sent from his city-issued and city-owned text-messaging pager (‘pager')...

Court Orders Monetary Sanctions for Production Delay Resulting from Counsel's Failure to Become Familiar with Plaintiff's Retention Policies and Systems

Posted on April 13, 2010
In re A&M Fla. Props. II, LLC, 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010) Where plaintiff's counsel 'failed in his obligation to locate and produce all relevant documents in a timely matter' by failing to gain a sufficient understanding of plaintiff's computer systems resulting in significantly delayed production of relevant documents, the court declined to impose terminating sanctions or an adverse inference but ordered monetary sanctions against plaintiff and counsel in an amount to be determined...

Court Declines to Impose Sanctions Against Qualcomm Attorneys Absent Evidence of Bad Faith

Posted on April 06, 2010
Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM) (S.D. Cal. Apr. 2, 2010) Apparently bringing an end to one of the best known e-discovery sagas since the 2006 amendments to the Federal Rules, United States Magistrate Judge Barbara Major has declined to impose sanctions against the previously sanctioned Qualcomm attorneys absent evidence of bad faith...

Court Orders Forensic Examination of Plaintiff's Computers Absent Denial that "Responsive Emails May have Existed at One Point"

Posted on April 05, 2010
Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D. Pa. Mar. 16, 2010) In this zoning dispute, defendant moved to enforce a prior order of the court and, essentially, compel more complete responses to discovery, including the production of electronically stored information ('ESI'), specifically emails...

Court Rules Communications with Attorney Using Work Computer are Protected as Privileged

Posted on April 02, 2010
Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010) In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received on a work computer...

Upcoming Events - April

Posted on April 01, 2010
Pennsylvania Bar Association: Internet Law Update April 12, 2010 8:30 AM – 3:45 PM PBI Professional Development Conference Center Heinz 57 Center 339 Sixth Ave., Floor 7 Pittsburgh, PA At this CLE addressing legal issues that arise through business and personal use of the Internet, K&L Gates Partner David Cohen will present a discussion of electronic discovery, including the most recent case law and technology that is impacting electronic discovery...

New York State Unified Court System Report Makes Recommendations for Improved Handling of E-Discovery

Posted on April 01, 2010
In New York, Chief Judge Jonathan Lippman and Chief Administrative Judge Ann Pfau released a report recommending improvements for how electronic discovery is handled in New York State Courts.  The report, based on 'extensive research and interviews with experts in electronic discovery', addresses the problems of electronic discovery, including cost and delay, and provides several recommendations on how "the courts  can manage e-discovery in a more expert, efficient and cost-effective manner within the framework of existing law...

Upcoming Events

Posted on April 01, 2010
Pennsylvania Bar Association: Internet Law Update April 12, 2010 8:30 AM – 3:45 PM PBI Professional Development Conference Center Heinz 57 Center 339 Sixth Ave., Floor 7 Pittsburgh, PA At this CLE addressing legal issues that arise through business and personal use of the Internet, K&L Gates Partner David Cohen will present a discussion of electronic discovery, including the most recent case law and technology that is impacting electronic discovery...

Citing First Amendment, Court Denies Motion to Compel Production of Information Sufficient to Identify Anonymous Discussion Board Users

Posted on March 17, 2010
McVicker v. King, 2010 WL 786275 (W.D. Pa. Mar. 3, 2010) In this suit arising from claims of unlawful and discriminatory termination, plaintiff, a former employee of the Borough, sought to compel a third-party owner of an internet discussion board to produce information sufficient to identify anonymous authors of certain, relevant posts...

Despite Malaysian Blocking Statute, Court Compels Third Party's Production of Foreign Banking Information Pursuant to Subpoena

Posted on March 17, 2010
Gucci Amer., Inc. v. Curveal Fashion, 2010 WL 808639 (S.D.N.Y. Mar. 8, 2010) Plaintiff sought to compel the production of documents and information regarding defendants' Malaysian bank accounts pursuant to a subpoena served on United Overseas Bank's New York Agency ('UOB NY')...

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