Litigation

District Court Modifies Magistrate Judge's Order Requiring Production of Forensically Sound Copies of Defendant's Servers to Allow for Pre-Production Privilege Review

Posted on March 21, 2008
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) In this case involving claims of misappropriation of trade secrets, defendants objected to an order of a magistrate judge requiring them to disclose "forensically sound" images of certain data storage devices (Thermax's India and Michigan servers) to plaintiffs' counsel without any limitation as to the scope of the disclosure or prior filtering for privileged or work-product materials that the images might hold...

No Sanctions Warranted for Failure to Produce "Smoking Gun" Email, Where Email System Did Not Retain Any Sent Emails

Posted on March 20, 2008
Clearone Communications, Inc. v. Chiang, 2008 WL 704228 (D. Utah Mar. 10, 2008) In this case involving claims of misappropriation of trade secrets, breach of contract and conversion, plaintiff sought sanctions for two claimed wrongs:  (1) defendants’ belated production of, and misrepresentations about, source code complete with developer comments; and (2) defendants’ failure to produce “smoking gun” email, which was produced by another party who was the recipient of the email...

Magistrate Judge Sets Protocol for Plaintiff's Forensic Examination of Former Employee's Computer and Requests Affidavit from Expert Explaining Certain Issues

Posted on March 17, 2008
Equity Analytics, LLC v. Lundin, 2008 WL 615528 (D.D.C. Mar. 7, 2008) In this case, plaintiff Equity Analytics claimed that defendant, its former employee, gained illegal access to electronically stored information after he was fired.  Defendant explained that another Equity employee had granted him permission to use the employee’s username and password to access a particular Equity computer system...

District Court Lifts Sanctions Against Six Qualcomm Attorneys, Remands Attorney Sanctions Issue to Magistrate Judge to Allow Attorneys to Defend Selves Fully

Posted on March 07, 2008
On March 5, 2008, District Judge Rudi M. Brewster issued his Order Remanding in Part Order of Magistrate Court re Motion for Sanctions Dated 1/7/08.  The order vacated and remanded that portion of the January 7 Sanctions Order imposing sanctions against Qualcomm's six outside counsel...

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Bald Assertions of Burden Insufficient Under Rule 26(b)(2)(B); Ball Club Ordered to Produce Remaining Email Using Previously Agreed-Upon Search Terms

Posted on March 05, 2008
City of Seattle v. Prof'l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008) The discovery dispute in this decision involved the City of Seattle's request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members...

ABA TechShow 2008 is March 13-15 in Chicago

Posted on March 04, 2008
March 13-15, 2008 Hilton Chicago 720 South Michigan Avenue Chicago, IL 60605 ABA TechShow 2008 offers more than 50 education and training sessions in 16 different tracks.  Sessions are designed to help people at various skills levels learn to make the most effective use of technology in their legal setting...

Court Finds Deleted Email "Not Reasonably Accessible"; No Duty to Search Backup Tapes for Emails of a Sexual Nature

Posted on March 04, 2008
Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008) In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period...

Now Watch the Lawyers Blitz -- The NFL destroyed the tapes. But it still hasn't escaped the sack.

Posted on March 03, 2008
Appearing in this week’s Legal Times, an article by K&L Gates partner Thomas J. Smith entitled:  Now Watch the Lawyers Blitz -- The NFL destroyed the tapes.  But it still hasn’t escaped the sack. (Free registration required to view...

Attorneys Who Erroneously Relied on Client's Defective Search Methods Were Merely Negligent and Not Acting in Bad Faith; Monetary Sanctions Imposed Against Client Only

Posted on March 03, 2008
Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008) In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA.  Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home...

Recent Amendments to Federal Rules of Appellate, Bankruptcy, Civil and Criminal Procedure Require Redaction of Personal Identification Information from Documents Filed with the Court

Posted on February 29, 2008
On December 1, 2007, the amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure that implement the E-Government Act of 2002 became effective.  The amendment to Appellate Rule 25, and new Bankruptcy Rule 9037, Civil Rule 5...

Qualcomm Accepts Sanctions Issued by Magistrate Judge and Pays Entire $8,568,633.24 Sanction to Broadcom

Posted on February 28, 2008
In its Reply to Broadcom Corporation’s Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge filed on February 20, 2008, Qualcomm states that it acccepts the sanctions imposed by Magistrate Judge Barbara Lynn Major and is not appealing or filing any objections to the January 7, 2008 Sanctions Order...

Senate Passes Proposed Evidence Rule 502

Posted on February 27, 2008
On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The bill now goes on to be voted on in the House of Representatives.  The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007...

Defense Counsel's Unilateral Modification of Parties' Stipulated Privilege Screening Process Results in Additional Expert Costs and Over-Exclusion of Email

Posted on February 26, 2008
Henry v. Quicken Loans, Inc., 2008 WL 474127 (E.D. Mich. Feb. 15, 2008) This Fair Labor Standards Act overtime collective action was brought on behalf of approximately 422 plaintiffs who worked as "loan consultants" for defendants.  After defense counsel objected to plaintiffs' requests to produce emails of the several hundred individual plaintiffs and their 32 team leader managers, plaintiffs agreed to limit the relevant time period to the months of April, May and June of 2004...

K&L Gates' E-Discovery Case Database Has Fresh New Look, More Features, and Now Over 900 Cases

Posted on February 20, 2008
We are pleased to announce that we have enhanced our searchable e-discovery case database and have added a number of new attributes – several of which correspond with the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  For example, you can now select the attribute “FRCP 37(e) Safe Harbor,” click “Search,” and view a list of cases that have cited or discussed the new “Safe Harbor” rule...

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

Posted on February 11, 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...

Notwithstanding Objections to Magistrate Judge's January 7 Order, Sanctioned Attorneys Appear and Participate in CREDO Program

Posted on February 06, 2008
On January 29, 2008, attorneys James R. Batchelder, Adam A. Bier, Kevin K. Leung, Christian E. Mammen, Lee Patch and Stanley Young, as well as certain Qualcomm in-house attorneys, appeared before United States Magistrate Judge Barbara L. Major, as directed in her January 7, 2008 Order...

Court Declines to Order Production of Metadata Where Request for Production Did Not Specify Production in Original Format, and Orders Evidentiary Hearing on Spoliation Allegations

Posted on January 28, 2008
D'Onofrio v. SFX Sports Group, Inc., 2008 WL 189842 (D.D.C. Jan. 23, 2008) In this contentious employment discrimination case, Magistrate Judge John M. Facciola resolved a number of discovery disputes relating to the production of electronically stored information...

Managing Discovery of Electronic Information: A Pocket Guide for Judges

Posted on January 25, 2008
By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins Federal Judicial Center (2007) This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them...

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

Posted on January 24, 2008
At least 37 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...

List of States Actively Considering the Adoption of Special E-Discovery Court Rules

Posted on January 22, 2008
A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information.  Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials...

Virginia Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments

Posted on January 21, 2008
The Virginia Supreme Court's Advisory Committee on Rules of Court has unanimously concluded that it should publish a Tentative Draft of possible rules amendments on the topic of electronic discovery.  The Tentative Draft takes into account the detailed comments on an initial discussion draft circulated several months ago...

Alaska Supreme Court Seeks Public Comment on Proposed E-Discovery Amendments

Posted on January 18, 2008
The Alaska Supreme Court is now seeking public comment on a proposal to amend the Alaska Rules of Court to align Alaska’s discovery rules with the December 2006 federal rules amendments addressing the discovery of electronically stored information...

Chart Highlights White House E-Mail Gap

Posted on January 18, 2008
From a January 18, 2008 article by Pete Yost of the Associated Press: A White House chart indicates no e-mail was archived on 473 days for various units of the Executive Office of the President, a House committee chairman says. Rep. Henry Waxman, D-Calif...

Ohio Supreme Court Seeking Public Comment on Proposed E-Discovery Amendments

Posted on January 17, 2008
The Supreme Court of Ohio is now accepting public comments on proposed amendments to the Ohio Rules of Civil Procedure addressing electronic discovery.  The amendments to Rules 16, 26, 33, 34, 36, 37, and 45 are based on the December 2006 amendments made to the Federal Rules of Civil Procedure...

Current Listing of States That Have Enacted E-Discovery Rules

Posted on January 17, 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...

White House Responds to Questions Posed by Magistrate Judge John M. Facciola Regarding Backup Media and Email

Posted on January 17, 2008
Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 15, 2008) On January 15, 2008, a declaration authored by the White House’s Chief Information Officer was filed in response to the Court’s January 8 Order, discussed in our January 10, 2008 post on the subject...

California Judicial Council Seeks Public Comment on Proposed E-Discovery Amendments

Posted on January 16, 2008
To modernize civil discovery law and improve the procedures for handling the discovery of electronically stored information, the Judicial Council of California has proposed amending California’s Civil Discovery Act and two rules in the California Rules of Court on the management of civil cases...

Microsoft E-Discovery Summits

Posted on January 11, 2008
Please join us for in-depth information and discussion about the legal impact of recent amendments to the Federal Rules of Civil Procedure. Hosted by Microsoft and featuring speakers from K&L Gates, these summits will help equip your company to comply with evolving federal e-discovery requirements and help avoid costly penalties...

Arkansas Supreme Court Approves Amendments to Evidence Rule 502 and Civil Procedure Rule 26(b)(5) to Address Inadvertent Disclosure of Privileged Information or Work Product

Posted on January 11, 2008
On January 10, 2008, the Arkansas Supreme Court accepted the Committee on Civil Practice’s proposals for changes in the Arkansas Rules of Civil Procedure and Rules of Evidence to address the inadvertent disclosure of information protected by the attorney-client privilege, or any other evidentiary privilege, or the work product doctrine...

Court Orders White House to Provide Additional Information About Backup Media Being Preserved

Posted on January 10, 2008
Citizens for Responsibility & Ethics in Washington v. Executive Office of the President, No. 1:07-cv-01707-HHK (D.D.C. Jan. 8, 2008) This case involves a claim by the National Security Archive (“the Archive”) and Citizens for Responsibility & Ethics in Washington that several million email messages were improperly deleted from White House computer servers...

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