Litigation

Court Orders Adverse Inference for Failure to Preserve Relevant Evidence following Notice that such Evidence May Have Been Relevant in Future Litigation

Posted on July 31, 2009
KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009) Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire's spoliation of evidence, including the deletion of software and electronically stored information ('ESI') from its computers...

Court Orders Adverse Inference for Failure to Preserve Evidence following Notice that such Evidence May Have Been Relevant in Future Litigation

Posted on July 31, 2009
KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009) Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire's spoliation of evidence, including the deletion of software and electronically stored information ('ESI') from its computers...

Previously Opened Emails Stored for Less than 181 Days in Web-Based Account May be Obtained by Trial Subpoena

Posted on July 29, 2009
U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported) In this case, the Government sought to discover the contents of defendant's email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of '‘the contents of electronic communications (not in ‘electronic storage' as defined by 18 U...

Finding the Requested Information Relevant and Defendant's Cost Estimates "Greatly Exaggerated," Court Grants Plaintiffs' Motion to Compel

Posted on July 23, 2009
Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D. Kan. July 21, 2009) This matter was before the court on plaintiffs' renewed motion to compel the production of electronically stored information ('ESI').  Previously, the court denied a motion to compel without prejudice for reasons including plaintiffs' failure to establish the relevance of the material requested and defendant's estimated cost to comply and directed the parties to address recently enacted Fed...

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Court Orders Adverse Inference for Spoliation of CEO's Data but Finds No Obligation to Preserve Relevant Data of Third Party Consultants

Posted on July 16, 2009
Goodman v. Praxair Servs., Inc., 2009 WL 1955805 (D. Md. July 7, 2009) In this case arising from a claim for breach of contract, plaintiff Goodman alleged that defendant Praxair Services, Inc. (formerly Tracer) ('Tracer/PSI') spoliated relevant data and was deserving of sanctions...

"Inhibited Ability to Participate Meaningfully in Electronic Discovery" Results in Reduction of Rate of Recoverable Attorney's Fees

Posted on July 10, 2009
Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009) Following a verdict in their favor, plaintiffs moved for attorneys' fees as provided by law.  Finding that plaintiffs were the 'prevailing parties' under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys' requested hourly rates, with one exception...

Swiss Government Says It Would Seize UBS Data Sought by U.S.

Posted on July 08, 2009
Bloomberg.com, July 8, 2009 By David Voreacos and Mort Lucoff July 8 (Bloomberg) -- Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American account holders in a crackdown on tax evaders...

Court Grants Motion for Sanctions, Precludes Defendants' Assertion of Affirmative Defense

Posted on July 02, 2009
Arista Records, LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009) In this copyright infringement case, plaintiffs alleged defendants committed egregious discovery violations deserving of terminating sanctions.  The violations included wiping relevant hard drives of its employees, failing to preserve and produce relevant emails, providing misleading responses to discovery, and violating two court orders, among other things...

Governor Schwarzenegger Signs California's Electronic Discovery Act, to be Effective Immediately

Posted on July 01, 2009
After previously vetoing a prior version of the bill for budgetary reasons, Governor Schwarzenegger signed California's Electronic Discovery Act last night, to be effective immediately. Closely tracking the 2006 amendments to the Federal Rules of Civil Procedure, the act institutes procedures to guide the discovery of electronically stored information in California...

Magistrate Judge Declines to Compel Plaintiff to Categorically Organize Documents that were Produced as Kept in the Usual Course of Business

Posted on June 30, 2009
Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009) In response to defendant's requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information ('ESI') as they were kept in the usual course of business...

You Get What You Pay For: Court Allows Access to Defendant's Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs

Posted on June 26, 2009
Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009) This case arose from plaintiff's claim that defendant's product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff's damages resulting from the condition...

Judge finds Dell Inc. in Contempt

Posted on June 25, 2009
By BECKY BOHRER NEW ORLEANS (AP) — A state court judge on Thursday found Dell Inc. in contempt of court, saying the computer company was making a "mockery" of the system with its alleged piecemeal production of documents in a civil lawsuit over New Orleans' crime camera system...

Court Finds Request Overly Broad and Unduly Burdensome and Denies Motion to Compel but Orders Search of Electronically Stored Information According to Its Instruction

Posted on June 19, 2009
Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009) Following the court's award of partial summary judgment to defendant, the sole cause of action remaining was plaintiff's claim for breach of an oral agreement.  In support of that claim, plaintiff sought to compel the production of five DVDs containing the results of defendant's search for potentially responsive electronically stored information ("ESI") referencing plaintiff, including emails...

Iowa Supreme Court Adopts New Evidence Rule 5.502 Addressing the Disclosure of Information Subject to the Attorney-Client Privilege and Work Product

Posted on June 18, 2009
On April 2, 2009, the Iowa Supreme Court approved the adoption of Evidence Rule 5.502 addressing the disclosure of information covered by the attorney-client privilege and work product.  Substantially similar to recently enacted Federal Rule of Evidence 502, the new rule outlines the effects of disclosure with regard to waiver, including the effect of inadvertent disclosure...

Upcoming Events

Posted on June 17, 2009
E-Discovery Workshop via HP Halo Telepresence Collaboration Studios – 'E-Discovery in a Down Economy:  Achieving Litigation Readiness While Cutting Costs and Improving Outcomes' July 16, 2009 HP Halo Studio Locations:      New York, NY – 2 Penn Plaza, 8th Floor      Marlborough, MA – 200 Forest St...

Appellate Court Finds Trial Court Abused its Discretion by Failing to Impose Terminating Sanctions for Discovery Abuses, Directs Entry of Default Judgment

Posted on June 17, 2009
Doppes v. Bentley Motors, Inc., 2009 WL 1578384 (Cal. Ct. App. June 8, 2009) In this case arising from plaintiff's claims of a foul odor in his new car and defendant's failure to repair it, plaintiff repeatedly sought terminating sanctions from the trial court for defendant's repeated and egregious discovery abuses...

Finding Plaintiffs' Ex-Employee and his New Employers Culpable for the Spoliation of Ex-Employee's Laptop, Court Orders Adverse Inference and Monetary Sanctions

Posted on June 15, 2009
Beard Research, Inc. v. Kates, 2009 WL 1515625 (Del. Ch. May, 29, 2009) (Unpublished) In this case, arising from plaintiffs' claims that defendants interfered with business relationships and misappropriated trade secrets, plaintiffs sought sanctions against defendants for the destruction of information on a laptop computer which belonged to defendant Michael Kates, a former employee of plaintiffs...

Court Declines to Compel Production of Documents from Foreign Jurisdiction upon Finding a Lack of Personal Jurisdiction and where Certain Documents are Protected from Production by Israeli Law

Posted on June 04, 2009
Linde v. Arab Bank, PLC, 2009 WL 1456573 (E.D.N.Y. May 22, 2009) In this case, defendant Arab Bank moved to compel production of documents, pursuant to subpoena, by non-parties Israel Discount Bank, Ltd. ('IDB'), its indirect, wholly –owned subsidiary, Israel Discount Bank of New York ('IDBNY'), and Bank Hapoalim ('Hapoalim')...

Finding Defendants' Behavior "a Textbook Case of Discovery Abuse," Court Orders $1,022,700 in Monetary Sanctions

Posted on June 04, 2009
Kipperman v. Onex Corp., 2009 WL 1473708 (N.D. Ga. May 27, 2009) In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought sanctions accordingly...

Update: Supreme Court of Louisiana Vacates Court of Appeal's Judgment to Vacate Preliminary Injunction of District Court, Remands for Further Proceedings

Posted on June 01, 2009
Council of the City of New Orleans v. Washington, 2009 WL 1492869 (La.  May 29, 2009) In this case, attorney Tracie Washington and others appealed a preliminary injunction from the District Court preventing the dissemination of emails received in response to a public records request...

Court Rules Office of Administration Not Covered by Freedom of Information Act, Records Related to White House Email Management Systems Need not be Produced

Posted on May 27, 2009
Citizens for Responsibility and Ethics in Washington v. Office of Admin., 2009 WL 1373612 (D.C. Cir. May 19, 2009) Citizens for Responsibility and Ethics in Washington ('CREW') alleged that 'entities in the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House emails...

Court Finds Delay in Objecting to a Failure to Produce in Native Format Was "Patently Unreasonable" and Denies Defendant's Motion to Compel Production; Court Also Denies Motion to Confirm Adequacy of Defendant's Manual Search

Posted on May 27, 2009
Ford Motor Co. v. Edgewood Props., Inc., 2009 WL 1416223 (D.N.J. May 19, 2009) In this case, arising from allegations surrounding contaminated concrete following the demolition of a Ford plant in New Jersey, defendant Edgewood Properties ('Edgewood') brought several motions before the court, including a motion to compel production of documents in their native format (or documents containing metadata) and a motion for an order granting Edgewood the right to confirm the adequacy of Ford's manual collection process by searching the electronic systems of certain custodians...

Preliminary Injunction against Publication and Dissemination of Documents Received in Public Records Request Violates First Amendment

Posted on May 20, 2009
Council of the City of New Orleans v. Washington, 2009 WL 1300747 (La. Ct. App. May 12, 2009) In this case, Relator Tracie Washington, a Louisiana attorney, and others, appealed the trial court's issuance of a preliminary injunction which prevented them from publishing or disseminating documents received in response to a public records request and required that all documents be returned, among other restrictions...

Granting Motion to Compel, Court Orders Appointment of Independent Expert "to Retrieve any Deleted Responsive Files from Defendants' Computers"

Posted on May 06, 2009
Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009) In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff's requests for production of documents and failed to offer adequate justifications or explanations for such behavior...

Federal Court Defers Final Ruling on Attorneys' Fees Motion Related to Forensic Examination

Posted on May 05, 2009
Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009) In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements...

Centaurus Financial Fined $175,000 for Failing to Protect Confidential Customer Information

Posted on April 30, 2009
The Financial Industry Regulatory Authority (FINRA) announced this week that it has fined Centaurus Financial, Inc. $175,000 for failing to protect confidential customer information.  Specifically, between August 2006 and July 2007 Centaurus failed to employ adequate safeguards against infiltration of its fax server containing the information at issue...

Qualcomm Agrees To Pay Broadcom $891 Million as Part of Settlement Agreement

Posted on April 30, 2009
Announced this week, Broadcom Corporation and Qualcomm Incorporated have entered into a settlement and multi-year patent agreement.  Under the terms of the settlement agreement, Qualcomm has agreed to pay Broadcom $891 million over four years.  Other notable terms of the agreement include dismissal of all litigation between the companies and Broadcom's withdrawal of its complaints to the European Commission and the Korea Fair Trade Commission...

Acknowledging Trial Court's Efforts to Fashion an Appropriate Sanction, Appellate Court Rejects Argument that Sanction was Punitive and Affirms Award of $90,000

Posted on April 24, 2009
Oz Optics, Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. Apr. 15, 2009) (Unpublished) In this case arising from defendant/appellant Hakimoglu's breach of her employment contract, the trial court awarded $90,000 in monetary sanctions upon finding that Hakimoglu violated a court order to produce her laptop and spoliated evidence by using wiping software to delete potentially relevant data...

Keeping You Informed: K&L Gates Partners to Speak at Upcoming Events

Posted on April 21, 2009
IQPC 7th Annual e-Discovery Conference April 27-29, 2009 Le Meridien San Francisco 333 Battery Street San Francisco, CA 94111 K&L Gates partner David Cohen will be a part of the panel leading the discussion at Workshop C entitled, 'E-discovery In a Down Economy: Achieving Litigation Readiness While Cutting Costs & Improving Outcomes' scheduled to take place on April 27th at 2:45 PM...

Finding Question of Duty to Preserve Backup Tapes Hinges on Applicability of Exception to the Rule, Court Orders Hearing to Address the Issue

Posted on April 17, 2009
Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. Apr. 14, 2009) In this case, defendants filed a motion seeking a hearing to address plaintiffs' suspected spoliation of evidence, for an order forbidding plaintiffs from asserting that their drug, escitalopram, did produce unexpected results, and for plaintiffs to pay attorney fees...

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