Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

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.

To read the full text of the Electronic Discovery Act, click here.

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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.  Plaintiff also produced two indices which identified the custodian for each bates range, the location the file was stored, document titles and “re:” lines of emails, and additional information regarding the creation and storage of the information produced.  Defendant argued that despite the information provided, it nonetheless had to open and review each file individually and alleged that plaintiff named the files “innocuously” in order to frustrate its review.  Discussing the relevant burden to a party producing its files as maintained in the usual course of business, the court found plaintiff had satisfied its burden under Fed. R. Civ. P. 34 and the parties’ agreement and denied defendant’s motion to compel plaintiff to organize the data into 28 specific categories.

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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.  In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel.  Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.

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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.

Judge Rosemary Ledet also ordered Texas-based Dell to pay $25,000 in sanctions. Plaintiffs' attorneys had requested nearly $182,000 in fees and expenses.

Dell attorney Phillip Wittmann disputed claims that the company was dragging its feet and playing games in discovery, saying that more than 160,000 pages of documents have been produced, e-mail and other information has been handed over as it's been uncovered and that the company has been acting in good faith.

But Ledet called the company's conduct "unconscionable," after hearing arguments from plaintiffs' attorneys that searches using such keywords as "camera" were not done for e-mail and other documents that may have been sent to or by Dell executives, including Chief Executive Michael Dell.

Plaintiffs' attorney Gladstone Jones said he "wasted my time" in Texas last week for Michael Dell's deposition because of the quality of the records' search.

Ledet ordered a search using specific words and said the sides can discuss how to proceed if the search yields a huge amount of records. She did not order that depositions, like Michael Dell's, be taken again.

Click here to read the full article.

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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.  Because of the broad nature of defendant’s search, the DVDs contained some information that was privileged or otherwise non-discoverable.  Defendant opposed the request as overly broad and unduly burdensome “given the narrow issues remaining in the case.”  Moreover, defendant had previously produced responsive ESI, including ESI contained on the DVDs.  The court denied plaintiff’s motion to compel.  Having denied the motion, the court nonetheless recognized defendant’s obligation to “conduct reasonable searches” to respond to plaintiff’s discovery requests and ordered defendant to conduct additional searching of the ESI at issue as instructed by the court.

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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.  The rule became effective on June 1, 2009.

Click here to view the full text of the Supreme Court’s report.

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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.  Instead, the trial court ordered the jury would be instructed regarding defendant’s discovery failures and allowed to draw an adverse inference. Even when presented with additional evidence of defendant’s failures during trial, the trial court refused to award terminating sanctions.  On appeal, the appellate court found that the trial court abused its discretion in failing to impose terminating sanctions and remanded the case with instructions to strike defendant’s answer and enter default judgment, among other things.

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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.
     Alpharetta, GA – 5555 Windward Parkway
9:30 – 12:30 PM

K&L Gates Partner, David Cohen, will co-facilitate this timely discussion covering a range of topics, including e-discovery readiness, identifying and addressing the risks of e-discovery, best practices of successful organizations, and how your business can achieve the balance of cutting costs, protecting your business, and preparing for the future, among others.

Click here to learn more.

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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.  The court refused to award default judgment, as requested, but ordered an adverse inference against Kates and ordered monetary sanctions against Kates and defendants Advanced Synthesis Group (“ASG”) and ASDI, Inc. (“ASDI”) resulting from Kates’s destruction of a relevant hard drive and ASG’s and ASDI’s failure to take reasonable steps to prevent that destruction.

Dr. Michael Kates was employed by plaintiffs between 1997 and February 2004.  In mid-2003, while still employed by plaintiffs, Kates purchased a Gateway laptop for business purposes.  Between 2003 and early 2004, Kates’s relationship with plaintiffs deteriorated.  In December 2003, Kates resigned from plaintiff C&B Research & Development, Inc. (“CB”) and on February 13, 2004, Kates also resigned from plaintiff Beard Research, Inc. (“BR”).  Kates began working at ASG three days later and eventually went to work for ASDI; he continued to use the Gateway laptop.  ASDI provided management services for ASG and both plaintiffs and defendants were involved in the sale of chemical compounds through a catalog, among other things.  On May 4, 2005, CB and BR filed suit against Kates, ASDI, ASG and others.

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