Litigation

"Like any Ordinary Litigant, the Government Must Abide by the Federal Rules of Civil Procedure"

Posted on January 28, 2009
S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009) In this case, arising from claims of securities fraud, the court addressed questions concerning the government’s discovery obligations in civil discovery.  Throughout discovery in the case, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information...

Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production

Posted on January 26, 2009
Lake v. City of Phoenix, 2009 WL 73256 (Ariz. Ct. App. Jan. 13, 2009) In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law...

Court Enforces Agreement Regarding Search Terms and Production of Disaster-Recovery Backup Tapes; Holds Third-Party in Contempt Despite $6 Million In "Extensive Efforts to Comply"

Posted on January 26, 2009
In re Fannie Mae Sec. Litig., 2009 WL 21528 (D.C. Cir. Jan. 6, 2009) In this case, the district court held defendants had sole authority to dictates search terms, per stipulated order, and sanctioned a third-party for failure to timely produce documents, despite significant efforts to comply with the deadline...

Michigan Amends Court Rules to Address E-Discovery

Posted on January 22, 2009
On December 16, 2008, the Michigan Supreme Court adopted amendments to Michigan’s Court Rules to address discovery of electronically stored information in civil litigation.  The new rules became effective January 1, 2009. The adopted amendments affect the following rules: 2...

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Destruction of Documents Pursuant to Document Retention Policy Results in Dispositive Sanctions Where Policy was Created as Part of Litigation Strategy and Thus Litigation was Reasonably Foreseeable

Posted on January 16, 2009
Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009) In this case arising from Micron’s alleged infringement of Rambus’ patents, a bench trial was held on the issue of Rambus’ alleged spoliation of relevant documents pursuant to a document retention policy it had recently implemented...

Louisiana Amends Three More Rules to Address Treatment of Electronically Stored Information

Posted on January 13, 2009
Effective January 1, 2009, Louisiana has adopted amendments to several civil rules to specifically address the treatment of electronically stored information. CCP 1354 Subpoena deuces tecum - was amended to govern the form of electronically stored information produced in response to a subpoena duces tecum and specifically addresses the format of production and production of documents not reasonably accessible, among other things...

"Since Both Parties Went Through the Same Stop Sign...They Both Should Pay for the Crash": Court Orders Parties to Split Cost of Privilege Review

Posted on January 09, 2009
Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008) In this case arising from claims of misappropriation and conversion of trade secret information, plaintiff filed a motion to compel following a disagreement regarding the proper format of production of electronically stored information...

Despite Document Retention Policy Allowing Individual Determination for Need to Preserve, Court Orders Board to Bear Recovery Cost of Deleted Emails in Response To Records Request

Posted on January 09, 2009
State ex rel. Toledo Blade Co. v. Seneca County Bd. Of Comm’rs, 2008 WL 5157733 (Ohio Dec. 9, 2008) This case arose from plaintiff’s request to review “all outgoing and incoming emails” of several Seneca County Commissioners following the board’s approval of plan that called for the demolition of the courthouse...

K&L Gates Partners to Speak at E-Discovery CLEs in February

Posted on January 05, 2009
Seattle University CLE – What Every Practitioner Needs to Know About e-Discovery February 6, 2009 8:30 a.m. – Noon Seattle University School of Law Sullivan Hall 901 12th Avenue Seattle, WA 98122-1090 K&L Gates partner Helen Moure will present the first session, “Basic Common Concerns (Top 10 Problems)”, at 8:40 a...

New Year, New Rules: Alaska and Virginia Adopt E-Discovery Amendments to Civil Rules

Posted on January 02, 2009
On December 19, 2008, the Supreme Court of Alaska adopted amendments to Alaska’s Rules of Civil Procedure to address the discovery of electronically stored information.  The amendments affect rules 16, 26, 33, 34, 37, and 45 and become effective April 15, 2009...

Maine Adopts Amendments to Rules of Civil Procedure

Posted on December 31, 2008
Effective August 1, 2008, Maine has adopted amendments to its Rules of Civil Procedure to “address the need for specific treatment of the discovery of electronically stored information.”  As stated in the Advisory Committee Note to Rule 16, the amendments were taken largely from the 2006 amendments to the Federal Rules of Civil Procedure and practitioners are instructed that “guidance in the interpretation of the Maine rules may be obtained from the federal amendments, their Advisory Committee’s Notes, and cases applying to the federal rules...

Court Enforces Clawback Agreement, Denies Motion to Compel

Posted on December 29, 2008
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 5210346 (E.D. Pa. Dec. 11, 2008) On the eve of trial in this case in which plaintiffs alleged trade secret theft, the court granted an extension “on urgent party request” so that additional discovery could be accomplished...

Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived

Posted on December 24, 2008
Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Nov. 25, 2008) In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor...

California Legislature Reconsiders E-Discovery Amendments

Posted on December 24, 2008
On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information...

A New Year's e-Resolution: Sending Safe e-Mail

Posted on December 17, 2008
pThe risks associated with e-mail miscommunication and misdirection have been well documented. Because these risks originate from e-mail users, perhaps the best way to mitigate such risks is to help individual e-mail users remember and implement a checklist for sending e-mails safely...

New Additions to the Growing List of State E-Discovery Rules; Arkansas and Kansas Added for the First Time

Posted on December 15, 2008
Arkansas Effective January 10, 2008 Arkansas has amended Rule 26 to address inadvertent disclosure. Rules 26 General Provisions Governing Discovery (See section 26(b)(5)) Iowa Effective September 1, 2008 the Iowa District Court Trial Scheduling Order was amended to address the discovery of electronically stored information...

Court Declines to Order Re-production in Electronic Format; Finds No Waiver of Privilege from Inadvertent Disclosure

Posted on December 12, 2008
Laethem Equip. Co. v. Deere & Co., 2008 WL 4997932 (E.D. Mich. Nov. 21, 2008) In this case involving breach of contract and other claims, the court ordered the defendant to return inadvertently produced, privileged, electronically stored information (“ESI”) to the plaintiffs, and ordered the parties to secure all relevant ESI in their possession and file a written outline of the secured data (“data log”) with opposing counsel and the court...

Court Addresses Production of Metadata in Great Detail and Grants Production of Some but Not All Data Sought

Posted on December 11, 2008
Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008) In this class action case alleging unlawful searches and seizures of plaintiffs’ homes, a discovery dispute arose regarding the production of metadata...

Finding Burden of Retention and Production Outweighs Benefit, Court Allows Recycling of Back Up Tapes

Posted on December 11, 2008
Gulfstream Worldwide Realty, Inc. v. Phillips Elecs. N. Am. Corp., 2007 WL 5685128 (D.N.M. Oct. 19, 2007) In this case, arising out of a claim for a commission on the sale of a semiconductors plant, Phillips Electronics North America (“PENAC”) moved the court for a protective order to allow NXP Semiconductors USA, Inc...

One More Round: Court of Appeals Affirms All but Scope of Remedy, Remands with Specific Instructions to Narrow Scope

Posted on December 03, 2008
Qualcomm Inc. v. Broadcom Corp., 2008 WL 5047675 (Fed. Cir. Dec. 1, 2008) On December 1, 2008, the Court of Appeals for the Federal Circuit issued its opinion affirming the lower court’s findings that Qualcomm breached its duty to disclose the patents at issue in the underlying case and thus waived the enforceability of those patents...

Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver

Posted on November 26, 2008
Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 2008 WL 4916026 (E.D. Pa. Nov. 14, 2008) In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents.  Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents...

Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to "Fix" Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed

Posted on November 26, 2008
Barnett v. Simmons, 2008 WL 4853360 (Okla. Nov. 14, 2008) In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him.  Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil...

K&L Gates Lawyers to Give Several Presentations in December

Posted on November 25, 2008
Pennsylvania Bar Institute: e-Discovery December 2, 2008 9:00 AM – 4:30 PM EST Several Locations, Webcast K&L Gates partner David Cohen will speak at two sessions during this event. The first presentation, “ABCs of EDD” will begin at 9:05 a...

Nebraska Recodifies Civil Rules

Posted on November 24, 2008
According to a Revisor’s note: The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb...

Arizona Amends Rules of Family Law Procedure to Address Electronic Discovery

Posted on November 20, 2008
Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues.  The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009...

In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception

Posted on November 19, 2008
Qualcomm Inc. v. Broadcomm Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008) At trial in this case, Broadcomm made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications...

New Additions to List of District Court Rules

Posted on November 11, 2008
At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery...

Miscommunication about Search Terms Leads to Defendants' Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff

Posted on November 10, 2008
Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008) In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production...

Court Holds No Expectation of Privacy on Work Computer, Even for "Personal" Information

Posted on November 10, 2008
State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008) In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search...

A Busy November: K&L Gates Partners to Speak at Several E-Discovery Events

Posted on November 07, 2008
Allegheny County Bar Association CLE - T-BOLT: The Best of Legal Technology November 10-11, 2008 David L. Lawrence Convention Center 1000 Fort Duquesne Blvd. Pittsburgh, PA 15222 K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith...

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