Litigation

Court Sanctions Qualcomm $8,568,633, Orders Certain In-House and Former Outside Counsel to Participate in "Case Review and Enforcement of Discovery Obligations" Program, and Refers Investigation of Possible Ethical Violations to California State Bar

Posted on January 08, 2008
Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) On Monday, January 7, 2008, United States Magistrate Judge Barbara L. Major issued her Order on Broadcom’s Motion for Sanctions related to Qualcomm’s failure to produce tens of thousands of documents that Broadcom had requested in discovery...

The Computer Forensics Show

Posted on January 07, 2008
Washington Convention Center 801 Mt. Vernon Place NW Washington, DC 20001 February 4-6, 2008 K&L Gates partner David E. Cohen will be presenting the opening day keynote address at this inaugural computer forensics event.  David’s presentation, entitled "A Litigation ‘Perfect Storm’:  Why Data Proliferation and E-Discovery are Battering U...

Texas Appellate Court Upholds Discovery Order Requiring Party to Allow Opposing Party's Expert to Create Mirror Images of Office Computer Hard Drives

Posted on January 07, 2008
In re Honza, 2007 WL 4591917 (Tex. App. Dec. 28, 2007) Defendants in underlying real estate litigation sought a writ of mandamus compelling the trial court to set aside a discovery order that required them to permit a forensic expert to create a mirror image of each of the computer hard drives in their office in an effort to locate two particular documents or iterations of those documents...

County's "Foot Dragging" in Discovery and Failure to Implement Legal Hold Warrant Monetary Sanctions, but not Default Judgment or Adverse Inference Instruction

Posted on January 03, 2008
Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007) In this case, plaintiffs alleged that their civil rights had been violated when the defendants denied them the opportunity to purchase real estate at auction.  The email dispute was first brought to the court's attention in August 2006, when the plaintiffs moved to compel supplemental discovery responses from the County...

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Terminating Sanctions Warranted for Willful Spoliation of Evidence

Posted on December 16, 2007
Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions) The court imposed terminating sanctions and entered default judgment against defendants in this copyright litigation as a result of defendants’ willful spoliation of key evidence...

Uniform Rules Relating to the Discovery of Electronically Stored Information Approved and Recommended for Enactment

Posted on December 16, 2007
The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.The NCCUSL describes the Uniform Rules as follows: The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery of electronic documents in civil cases...

Bill Introduced to Enact Evidence Rule 502

Posted on December 15, 2007
On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  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...

Defendant's Disposal of Laptop and Untruthful Testimony about Circumstances of Disposal Warrant Adverse Inference Instruction and Relaxed Burden of Proof for Plaintiff

Posted on December 14, 2007
Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007) This insurance coverage litigation stemmed from property damage caused by Hurricane Katrina in 2005.  Plaintiff Great American contended that there was a mutual mistake of fact in connection with the formation of the insurance contract, arguing that the parties, acting through their agents, understood that wind damage coverage was excluded...

Native Production Warranted Where Alleged Backdating of Documents is at the Heart of Parties' Dispute

Posted on December 14, 2007
Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007) In this letter opinion, the court ruled upon a number of discovery disputes, including one relating to the format of production.  Plaintiff sought an order compelling a defendant to respond to documents requests “in native file format, with original metadata, but without a separate production of metadata...

Florida Supreme Court Denies Review of Decision Reversing $1.58 Billion Judgment Against Morgan Stanley

Posted on December 14, 2007
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., No. SC07-1251 (Fla. Dec. 12, 2007)In a brief order issued on December 12, 2007, the Florida Supreme Court denied Coleman (Parent) Holdings, Inc.’s petition for review of the Florida state appellate court decision which reversed the $1...

Good Cause Exists for Production of "Not Reasonably Accessible" Claims Information

Posted on December 13, 2007
W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007) In this case, plaintiffs sued the third-party administrator of their employee medical benefits plans, alleging that it breached its fiduciary duty and the underlying contract by failing to perform its duties in a reasonably prudent manner...

Defendant Former Employer Entitled to Forensic Inspection of Plaintiff's Home Computer, at Defendant's Expense

Posted on December 12, 2007
Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007) In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation.  Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant's customers...

Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information

Posted on December 12, 2007
Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007) In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes.  Among other things, the judge found: That defendant conducted “an adequate and full search of all ESI formatted documents that may be relevant to the issues before this court and which are in [defendant’s] possession...

District Court Sustains Plaintiff's Objection to Magistrate Judge's Order Requiring Restoration and Production of Database Prepared in Separate Litigation

Posted on December 10, 2007
Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 4230806 (D. Minn. Nov. 29, 2007) Best Buy sued its landlords for fraud, breach of contract, breach of fiduciary duty and declaratory judgment, claiming that they overcharged insurance and maintenance costs for common areas...

Sixth Circuit Stays District Court's Order Allowing Plaintiffs' Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies' Computer Systems

Posted on December 10, 2007
John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007 and Dec. 7, 2007) This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs...

Avoiding E-Discovery Disasters

Posted on December 04, 2007
Tuesday, December 11, 2007 12 p.m. Luncheon & Program Sheraton Station Square 300 West Station Square Drive Pittsburgh, PA 15219 K&L Gates partner David R. Cohen will discuss how to avoid the pitfalls in litigation surrounding e-discovery requests at an upcoming program hosted by the Pittsburgh Chapter of Risk and Insurance Management Society, Inc...

Court Sets Protocol for Production of ESI by Non-Party Individual

Posted on December 03, 2007
In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007) In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi...

Sanctions Warranted for Failure to Comply with Court's Production Order and Failure to Implement Litigation Hold

Posted on December 01, 2007
Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007) In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation...

The Biggest Data Disaster Ever

Posted on November 30, 2007
From The Red Tape Chronicles, Posted:  Friday, November 30 at 05:15 am CT by Bob Sullivan:"It's being called the worst data leak of the information age.  Earlier this month, U.K. officials had to admit they'd lost hard drives containing personal information on almost half the country's population, including nearly all families with children...

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