Litigation

Finding Defendants' Proposed Search Protocol "Fundamentally Misguided," Court Creates Own and Orders Search of "Any Depository" that May Contain the Information Sought

Posted on November 06, 2008
D’Onofrio v. SFX Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008) In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery.  Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested...

K&L Gates Partner Receives E-Discovery Award at Annual Gala

Posted on November 05, 2008
At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award.  David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards...

Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay "All Reasonable Costs" Related to Discovery Dispute

Posted on November 05, 2008
Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008) In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions...

Court Orders Production of Relevant Source Code Citing Defendant's Suggestion for Mitigating Costs

Posted on November 05, 2008
Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests.  One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement...

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Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants' Hard Drives

Posted on October 30, 2008
Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008) In this defamation case, plaintiffs sought an order allowing expedited discovery.  Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc...

K&L Gates Lawyers Make Major Contributions to E-Discovery Publication

Posted on October 29, 2008
Available now from PBI Press, e-Discovery provides guidance for practitioners of all levels of experience through the often complicated world of e-discovery. Once again showcasing the depth of knowledge at the firm, four of the fifteen contributing authors to the publication are members of the K&L Gates e-Discovery Analysis and Technology Group...

Newly Released Securities and Exchange Commission Enforcement Manual ("Red Book") Provides Guidance on Treatment of Electronic Information

Posted on October 28, 2008
For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public.  Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation...

Court Declines to Require Plaintiff to Designate Specifically Confidential Portions of Documents during Discovery where Entire Document does not Rise to that Level

Posted on October 28, 2008
Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008) In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things...

Western District of North Carolina Amends Local Rules, Specifies Electronic Production as Topic of Pretrial Conference

Posted on October 24, 2008
Effective January 1, 2008, amended Local Rule 16.1 specifies appropriate topics for consideration at the Initial Pretrial Conference, including the production of electronically stored information (“ESI”). Click on the following link to see amended rule: Local Civil Rule 16...

Updated List: Local Rules, Forms and Guidelines of United States District Courts Addressing E-Discovery Issues

Posted on October 24, 2008
At least 38 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...

Court Highlights Cooperation Requirements of Discovery under Rule 26, Rules Objections Waived for Failure to Be Specific, and Orders Meet and Confer to Resolve Remaining Disputes

Posted on October 23, 2008
Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008) In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond...

To "Expedite the Flow of Discovery and Facilitate Prompt Resolution of Disputes", Court Adopts Proposed Order Governing Electronic Discovery

Posted on October 23, 2008
Star, Inc. v. QFA Royalties LLC, No. 07-cv-02223-WYD-CBS (D. Colo. Filed Oct. 10, 2007) In this case, the court granted an unopposed motion of the defendant to enter an order governing electronic discovery.  The proposed order adopted by the court was intended to “expedite the flow of discovery material and facilitate prompt resolution of disputes over production of electronic materials…”  Included in the order was a provision requiring each party to identify an “e-discovery liaison” through whom all discovery requests and responses would be made as well as provisions providing instruction regarding search methodology, timing of discovery, format of production, privilege review, document retention and costs...

Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry

Posted on October 21, 2008
Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008) In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence...

Finding "No Reason to Treat Websites Differently than Other Electronic Files," Court Grants Adverse Inference for Failure to Preserve Website

Posted on October 21, 2008
Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication) In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor...

Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor

Posted on October 20, 2008
In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008) In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner.  In July of 2000, the debtor contracted with MBP to handle the debtor’s billing...

Court Allows Subpoena Seeking Inspection of Plaintiff's Mother's Laptop, but Orders Defendant to Prepare Search Protocol and Pay Her Reasonable Costs

Posted on October 15, 2008
Hoover v. Fla. Hydro, Inc., 2008 WL 4467661 (E.D. La. 2008) In this breach of contract case, Hoover moved to quash subpoenas issued by defendant to two non-parties:  Hoover’s mother and Hoover’s former roommate. The subpoena issued to Hoover’s mother requested inspection of her laptop or any electronic storage device “for documents copied, sent to, or received by her son” related to several entities, including the defendant...

Court Orders Forensic Examination of Defendants' Business and Home Computers, Articulating 20-Step Protocol

Posted on October 14, 2008
Koosharem Corp. v. Spec Personnel, LLC, 2008 WL 4458864 (D.S.C. Sept. 29, 2008) In this breach of contract case, plaintiffs alleged that defendants wrongfully obtained and used confidential information from former employee, Kenneth Fuston, who went to work for the defendants...

Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained

Posted on October 13, 2008
Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008) In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff's production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff's business, satisfied the responding party's obligations under Rule 34 of the Federal Rules of Civil Procedure...

Supreme Court of Ohio Adopts E-Discovery Amendments to Rules of Civil Procedure

Posted on October 10, 2008
The Supreme Court of Ohio has adopted several amendments to the Ohio Rules of Civil Procedure, including several related to electronic discovery.  The amendments, which took effect on July 1, 2008, include changes to Rules 16, 26, 33, 34, 37, and 45...

Current Listing of States That Have Enacted E-Discovery Rules

Posted on October 10, 2008
More and more states are adopting statutes and court rules addressing the discovery of electronically stored information.  Here is a current list with links to the relevant provisions. Arizona Amendments to Rules of Civil Procedure 16, 26, 26.1, 33, 34, 37 and 45 Effective January 1, 2008 Connecticut Connecticut Practice Book, Superior Court – Procedures in Civil Matters Sec...

Governor Vetoes E-Discovery Amendments to California's Civil Discovery Act

Posted on October 09, 2008
On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act .  In his veto message, the Governor explained: The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session...

Court Denies Relief Where Party Ignored Court's Suggestions for Reducing Volume of ESI Captured by Keyword Search: "Defendants Must Now Lie in the Bed that They Have Made"

Posted on October 03, 2008
Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008) In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes...

Reserving Judgment on Spoliation Pending Supplemental Briefing, Court Demands Answers to Eight Specific Questions

Posted on September 26, 2008
Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008) In this breach of contract litigation over allegedly non-conforming goods, Glasforms moved for sanctions against third-party defendant Taishan Fiberglass for the spoliation and destruction of documents...

State Court Rejects Appeal of Discovery Order Requiring Production of "Broken" Computers

Posted on September 25, 2008
Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 2008 WL 4291319 (Pa. Super. Sept. 22, 2008) In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants...

Court Orders Defendant to Re-Produce Documents Previously Produced as TIFF Images, Setting Out Three Format of Production Options

Posted on September 24, 2008
Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions.  Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF images...

President Bush Signs into Law S. 2450, a Bill Adding New Rule 502 to the Federal Rules of Evidence

Posted on September 22, 2008
On Friday, September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection...

Adverse Inference Instruction Warranted Where Spoliation Claim Supported by Credible Arguments, Witnesses and Evidence

Posted on September 20, 2008
Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008) In this case, plaintiffs claimed that they were fraudulently induced to invest in defendant’s catering businesses, and sought to inspect defendants’ business records.  Plaintiffs moved for an extension of time to complete their inspection, and also requested sanctions...

Briefing Schedule Set for Outstanding Discovery Motions in Qualcomm v. Broadcom Litigation

Posted on September 19, 2008
Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California On September 16, 2008, Magistrate Judge Barbara L. Major set a briefing schedule for the five pending discovery motions filed by the parties, requiring any oppositions to be filed on or before October 3, and any replies to be filed on or before October 10, 2008...

Adverse Inference and Other Sanctions Warranted for Plaintiff's Failure to Produce Damaging Emails that were Eventually Produced by Third Party

Posted on September 19, 2008
Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) In this patent infringement litigation, BNY sought sanctions on the grounds that Metrokane failed to produce a series of emails said to be highly damaging to Metrokane's case...

Failure to Preserve Key Player's Email and Interview Transcripts Warrants Adverse Inference Instruction, but not Default Judgment

Posted on September 11, 2008
Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. Sept. 2, 2008) In this class action securities litigation, plaintiffs sought sanctions based on alleged evidence spoliation by defendants.  Plaintiffs moved for terminating sanctions or, in the alternative, for lesser sanctions in the form of adverse inference instructions and an order precluding defendants from relying on spoliated evidence...

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