Litigation

Do You Comply with the New Massachusetts Information Security Regulation?

Posted on March 11, 2010
By Bruce H. Nielson, K&L Gates Partner, Washington D.C. What Does the Regulation Require? Every business that 'owns or licenses personal information' about a Massachusetts resident must 'develop, implement, and maintain' a comprehensive written information security program (WISP)...

Plan Ahead: Proposed Amendments to Rule 26 Would Extend Work-Product Protection

Posted on March 04, 2010
One of the great things about the current rule-making process is the ability to see change on the horizon and adapt accordingly.  This year, absent any unforeseen objection or delay, Rule 26 will be amended to extend the scope of the work-product doctrine to encompass draft expert reports and most communications between experts and counsel...

Court Provides Detailed Analysis of Law of Spoliation, Orders Adverse Inference Instruction, Monetary Sanctions for Intentional Spoliation of ESI

Posted on March 02, 2010
Rimkus Consulting Group, Inc. v. Cammarata, 2010 WL 645253 (S.D. Tex. Feb. 19, 2010) For intentional spoliation, the court declined to order terminating sanctions but ordered an adverse inference instruction and for defendants to pay plaintiff's attorneys fees and costs...

Court Sanctions Plaintiff for Accessing Password-Protected Documents and Other Violations, Reduces Sanction based on Behavior of Plaintiff's Counsel and Defendant

Posted on February 19, 2010
Lawson v. Sun Microsystems, Inc., 2009 WL 5842136 (S.D. Ind. Oct. 16, 2009);  Lawson v. Sun Microsystems, Inc., 2010 WL 503054 (S.D. Ind. Feb. 8, 2010) Where plaintiff accessed privileged, password-protected documents in defendant's production, 'carelessly' produced poor and incomplete copies of relevant taped conversations, and intentionally lied regarding taped conversations in deposition, the magistrate judge declined to recommend dismissal but recommended monetary sanctions instead...

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Court Finds Non-Party's Claims of Privilege Waived, Rejects Assertions of Undue Burden, Grants Defendant's Motions to Compel

Posted on February 12, 2010
Seger v. Ernest-Spencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010) In this personal injury case, the court found a non-party had waived its claims of privilege as to already-produced documents and granted defendant's motion to compel their production upon finding that disclosure was 'knowing and intentional' as evidenced by the non-party's failure to establish reasonable precautions to prevent disclosure and its failure to timely assert a claim of privilege, among other things...

Defendant "Fails to Show that it is Settled Law that the Party Requesting Discovery Must Bear the Cost of Production," Court Denies Motion for A Protective Order

Posted on February 11, 2010
MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2010 WL 447051 (N.Y. Sup. Ct. Jan. 14, 2010) (Unreported) Upon defendant's motion for a protective order to require plaintiff to bear the cost of defendant's production of electronically stored information ('ESI'), the court declined to follow the purportedly 'well settled rule' in New York that the party seeking discovery should bear the cost and denied defendant's motion...

Ontario's New Rules of Civil Procedure Address Electronic Discovery

Posted on February 10, 2010
As of January 1, 2010, Ontario's new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that 'In preparing the discovery plan,' as is required by Rule 29...

Court Compels Production of Foreign Data and Re-Production of "Already-Produced" Electronic Discovery in a Reasonably Usable Form

Posted on February 03, 2010
Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 3184777 (D. Utah Jan. 21, 2010) In this breach of contract case, the court granted plaintiff's motion to compel and ordered defendant (a German company) to produce responsive third-party, personal data, despite objections that such production would violate German law...

Personal Emails Retained by Public School's Email System Not Subject to Michigan's Freedom of Information Act

Posted on January 29, 2010
Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Mich. Jan. 26, 2010) In this 'reverse' Freedom of Information Act (FOIA) case, the trial court held that personal emails generated by and stored on a public school's email system were public records subject to FOIA...

Court Finds Data "Not Reasonably Accessible," Denies Motion to Compel

Posted on January 28, 2010
Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 2010 WL 174156 (D.P.R. Jan. 20, 2010) In this employment discrimination case, the court found the electronically stored information ('ESI') requested by the plaintiffs 'not reasonably accessible because of the undue burden and cost' and that plaintiffs had failed to show good cause to compel production of the ESI and denied plaintiffs' motion to compel...

"Zubulake Revisited: Six Years Later": Judge Shira Scheindlin Issues her Latest e-Discovery Opinion

Posted on January 27, 2010
Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 2010 WL 184312 (S.D.N.Y. Jan. 15, 1010) (Amended Order) Issued earlier this month, Judge Shira Scheindlin's opinion in Pension Comm. of Univer. of Montreal Pension Plan v...

District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations

Posted on January 26, 2010
Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2009 WL 5218035 (M.D. Fla. Aug. 3, 2009);  Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D. Fla. Jan. 5, 2010) Following her finding that '[Bray & Gillespie], through counsel, acted willfully and in bad faith in violation of the Federal Rules of Civil Procedure and this court's orders' by failing to make reasonable efforts to search for and produce documents in response to court orders and by making repeated misrepresentations to the court, among other things, the Magistrate Judge recommended that the plaintiff's claims be stricken and that the case be dismissed with prejudice...

Upcoming Events - February

Posted on January 22, 2010
The Knowledge Congress: Legal Ethics and E-Discovery – Live Webcast February 17, 2010 12-2 PM ET K&L Gates partner David R. Cohen will present on a number of topics, including compliance with preservation and production obligations, the duties of in-house vs...

Court Finds Claims of Burden and Expense "Exaggerated," Declines to Find Emails "Not Reasonably Accessible"

Posted on January 13, 2010
Starbucks Corp. v. ADT Security Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009) In this recently released opinion written earlier this year, the defendant, ADT Security Services, Inc. ('ADT'), sought to avoid its obligation to produce archived emails by arguing the emails were not 'reasonably accessible because of undue burden or cost,' as that term is used in Fed...

Appellate Court Affirms Order Allowing Plaintiff's Expert to Image Defendants' Hard Drives to Support Claims of Spoliation and Fraud

Posted on January 07, 2010
Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009) In this wrongful death litigation, the trial court granted plaintiff's motion to allow his forensic expert to create a mirror image of defendants' hard drives.  Plaintiff asserted that examination of the drives would reveal evidence of defendants' willful alteration or deletion of relevant evidence...

Upcoming Events - January

Posted on January 06, 2010
Center for Competitive Management – E-Discovery Best Practices and Compliance Guidelines (Audio Conference) January 14, 2010 2-3:15 PM ET K&L Gates partners David Cohen and Todd Nunn will co-present this discussion of how to stay on top of the rapidly changing world of electronic records, discovery, and evidence including discussion of specific topics such as recent rulings and risks associated with e-discovery, best practices for managing electronic stored information, opportunities and challenges for 2010, and methods for cutting costs and lowering data loss risks...

"International Man of Mystery" Sanctioned for Contempt of Court and Intentional Spoliation

Posted on December 23, 2009
TR Investors, LLC v. Genger, 2009 WL 4696062 (Del. Ch. Dec. 9, 2009) (Unpublished) In this case, defendant Arie Genger was held in contempt and found to have intentionally spoliated relevant documents in violation of a court order following his instruction to his personal IT consultant to wipe the unallocated space of his company's computer system which his consultant then carried out...

Western District of Oklahoma Adopts Best Practices for Electronic Discovery in Criminal Cases

Posted on December 17, 2009
If you needed more proof that electronic discovery is not just for civil cases, the Western District of Oklahoma has adopted 'Best Practices for Electronic Discovery of Documentary Materials in Criminal Cases.'  Adopted on August 20th, these Best Practices recognize the lack of guidance in Federal Rule of Criminal Procedure 16 or in U...

Court to rule on privacy of texting

Posted on December 15, 2009
By Robert Barnes Washington Post Staff Writer Tuesday, December 15, 2009 The Supreme Court will decide whether employees have a reasonable expectation of privacy for the text messages they send on devices owned by their employers. The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role...

Court Rules Mistaken Transmission of Privileged Email Due to Use of "Autofill" Function in Email Did Not Result in Waiver

Posted on December 11, 2009
Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009) When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party.  As a result, the email was eventually provided to opposing counsel in the litigation...

Ex Parte Contact with Independent Forensic Examiner Results in Forfeiture of Opportunity for Forensic Examination and Denial of Motion for Sanctions with Prejudice

Posted on December 11, 2009
G.K. Las Vegas Ltd. P'ship v. Simon Prop. Group, 2009 WL 4283086 (D. Nev. Nov. 30, 2009) Following a determination that defendants participated in improper ex parte communications with an independent, court-appointed forensic expert and thus destroyed its impartiality, the district court held that defendants had forfeited their right to a forensic examination of plaintiffs' relevant computer systems and modified its prior order to deny defendants' motion for spoliation sanctions with prejudice...

Supreme Court of Washington Holds Trial Court Did Not Abuse Discretion in Imposing $8,000,000 Default Judgment Pursuant to CR 37 for Defendant's Willful Discovery Violations

Posted on December 11, 2009
Magaña v. Hyundai Motor Am., 2009 WL 4070952 (Wash. Nov. 25, 2009) Plaintiff sustained injuries in an automobile accident that he alleged were caused in part by a defective seat design which allowed the seat to collapse.  The case went to trial and plaintiff was awarded $8,000,000...

Trial Court Violated Attorney-Client Privilege by Ordering In Camera Review

Posted on December 03, 2009
Costco Wholesale Corp. v. Superior Court, S163335 (Cal. Nov. 30, 2009) In 2000, Costco hired outside counsel to provide legal advice regarding the applicability of certain wage and overtime laws to its warehouse managers.  In furtherance of providing such advice, counsel spoke with two managers Costco had made available to her...

Finding Back-up Tapes "Not Reasonably Accessible" Court Declines to Compel Restoration of All but One Tape; No Sanctions for Deletion of Email Absent Evidence of Duty to Preserve or Showing of Bad Faith

Posted on December 03, 2009
Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009) In this breach of contract litigation, plaintiff filed a motion to compel defendant Watson Bowman Acme Corporation ('WABO') to 'remedy its spoliation of documents' by restoring and searching back-up tapes that potentially contained copies of emails that were deleted...

Communications with Attorney Using Company Computer and Email Account Not Protected by Attorney-Client Privilege

Posted on December 01, 2009
Alamar Ranch, LLC v. City of Boise, 2009 WL 3669741 (D. Idaho Nov. 2, 2009) In this case arising from a land use and permitting dispute, the court ruled that emails sent by a non-party to her attorney using her work computer and work-assigned email address were not protected by the attorney-client privilege...

Upcoming Events - December

Posted on November 18, 2009
Pennsylvania Bar Institute – E-Discovery December 3, 2009 PBI Professional Development Conference Center Heinz 57 Center 339 Sixth Ave., 7th Floor Pittsburgh, PA K&L Gates partner David Cohen will present 'The Year in Review,' a closer look at some of the most important and interesting opinions of 2009...

Federal Judicial Center Releases Preliminary Results of "Case-Based Civil Rules Survey"

Posted on November 16, 2009
The Federal Judicial Center has released the preliminary results of its Case-Based Civil Rules Survey.  The survey, as described in the Executive Summary 'presents preliminary findings form a survey of attorneys in recently closed civil cases…The report covers discovery activities and case management in the closed cases; electronic discovery activity in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attorney attitudes towards specific reform proposals, and, more generally, the Federal Rules of Civil Procedure...

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

Posted on November 12, 2009
In re Global Power Equip. Group, Inc., 2009 WL 3464212 (Bankr. D. Del. Oct. 28, 2009) Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of the claimant and, applying the 'comity analysis' as articulated by the United States Supreme Court, determined that the contested matter 'should and shall be conducted under the Federal Rules and not under the Hague Evidence Convention...

Upcoming Event - IQPC's 8th Annual Electronic Discovery Event

Posted on November 11, 2009
December 7-9, 2009 Altman Building New York, NY This electronic discovery conference gathers industry leaders together to explore the current risks, opportunities and current challenges facing e-Discovery.  Taking a strategic look at how best to manage Electronic Stored Information in a proactive, cost-effective and efficient manner, the goal of the event is to provide the necessary tools to make e-Discovery a normal business function rather than a "catastrophic" event...

Defendants and General Counsel Sanctioned for Failure to Preserve Evidence

Posted on November 11, 2009
Swofford v. Eslinger, NO. 6:08-cv-00066-Orl-35DAB (M.D. Fla. Sept. 28, 2009) In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects.  Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually...

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