Archive: December 2004

1
Taking The Fear Factor Out Of E-Mail
2
Electronic Records Open Up Fertile Legal Research Field
3
Legal Tech New York 2005
4
Eight Simple Steps for Doing Effective E-Discovery
5
Zubulake V: Court Grants Adverse Inference Instruction and Outlines Counsel’s Role in Locating, Preserving and Producing Relevant Evidence
6
Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court
7
Demanding Party to Pay for Recovery from Backup Tapes in “Proper Case”
8
Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers
9
Electronic Data Discoverable Despite Production of Hard Copy and Necessity for Extraction Software
10
Court Refines Balancing Test for Evaluating Motions for Preservation Orders

Taking The Fear Factor Out Of E-Mail

BusinessWeek Online, December 20, 2004

Tort reform is a hot topic again. Taking advantage of the most favorable political climate in years, business lobbyists are pushing for new federal laws that would mop up the asbestos mess, cap medical malpractice damages, and help companies steer class actions out of hostile state courts.

But there’s another legal reform campaign that has attracted much less attention — yet could be more significant than any of these measures. It is Corporate America’s effort to get the Judicial Conference of the U.S. (JCU), the obscure group that makes the rules governing lawsuits, to enact special new procedures for electronic evidence. This broad category of digital information includes spreadsheets, databases, memos, letters, PowerPoint presentations — and most important, the e-mail messages that have recently plagued so many companies in court. Read the entire article at BusinessWeek Online.

Electronic Records Open Up Fertile Legal Research Field

By Tricia Bishop, The Baltimore Sun
December 27, 2004

Brian L. Moffet said he saw the writing on the wall about three years ago. The attorney was arguing a national class- action suit with 50,000 pieces of paper entered into evidence when the judge asked, “Where are the e-mails?”

That sent Moffet into scramble mode.

“It was the first time I realized it was something that was going to have to be addressed,” recalled the lawyer with Gordon, Feinblatt, Rothman, Hoffberger & Hollander of Baltimore.

Read the entire article posted on latimes.com. [Subscription required.]

Eight Simple Steps for Doing Effective E-Discovery

E-discovery gurus George Socha and Dennis Kennedy discuss their simplified 8-step approach to effective discovery of electronic information [assessment, project management, forensics, conversion and storage, records management, search, integrating discovery into daily operations and trial prep] in this November 2004 Discovery Resources post.

Zubulake V: Court Grants Adverse Inference Instruction and Outlines Counsel’s Role in Locating, Preserving and Producing Relevant Evidence

Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) (“Zubulake V”)

In this fifth written opinion in this employment litigation, the court concluded that UBS had failed to take all necessary steps to guarantee that relevant data was both preserved and produced, and granted the plaintiff’s motion for sanctions. Specifically, the court ruled that the jury would be given an adverse inference instruction with respect to deleted emails, that UBS pay the costs of any depositions or re-depositions required by its late production of email, and that UBS reimburse plaintiff for the costs of the motion. Read More

Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court

Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2004 WL 2984815 (E.D.La. Dec. 9, 2004)

In this case, a company (NovelAire) filed a complaint against its former employees (Harrison and Bucklin) for breach of agreement and breach of fiduciary duties, intentional interference with a contract, and violations of Lousiana’s unfair trade practices act. The same day it filed its complaint, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled “Order for Expedited Discovery to Preserve Evidence.” The request was based, in part, on an email written by Bucklin that allegedly evidenced the employees’ intent to destroy discoverable evidence pertinent to NovelAire’s state court case. After reviewing the request, the judge ordered the sheriff to serve the discovery order on Harrison and Bucklin and remain on the premises until the order had been carried out. Read More

Demanding Party to Pay for Recovery from Backup Tapes in “Proper Case”

Toshiba American Elec. Components, Inc. v. Superior Court, 2004 WL 2757873 (Cal.App. Dec. 3, 2004)

In this discovery dispute, the parties disagreed about whether the demanding party or the responding party should pay the cost (estimated to be as much as $1.9 million) for recovering email from computer backup tapes. The court concluded that in a proper case, California Code of Civil Procedure, Section 2031 (g)(1) requires the demanding party to pay that expense. Declining to resolve the immediate dispute, the court ruled that the determination of a “proper case” is a factual matter best left to the discretion of the trial court. Read More

Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers

Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004)

Defendant sought sanctions when evidence showed that two key witnesses (principals of plaintiff, Maass and Chutijian) systematically deleted potentially relevant emails before and during litigation. Specifically, defendant sought an order (1) precluding plaintiff from presenting certain evidence and calling certain witnesses at trial and (2) requiring the two witnesses to execute consents authorizing Yahoo, Inc. and Microsoft Corporation to release to defendant all e-mails sent from or to Maass or Chutjian since June 30, 2000; all e-mails sent between Maass and Chutjian at any time (including as “cc’s”); and all e-mails between Maass or Chutjian any of eight specified e-mail addresses. Read More

Electronic Data Discoverable Despite Production of Hard Copy and Necessity for Extraction Software

Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y., Nov. 3, 1995)

Defendants resisted a motion to compel production of computerized data on grounds that they would have to “create” the information in electronic format. They stated that certain reports would be produced in hard copy form only, since they were no longer available in electronic form. Read More

Court Refines Balancing Test for Evaluating Motions for Preservation Orders

Capricorn Power Co., Inc. v. Siemens Westinghouse Power Corp., 220 F.R.D. 429 (W.D.Pa. 2004)

After the court declared a mistrial based on plaintiff’s mid-trial production of an expert report, the parties cross-moved for preservation orders. The court began its analysis by observing that the four-prong test typically applied to matters concerning injunctive relief was not a completely appropriate test to utilize when examining the need for a preservation order, particularly since proof of a probability of success in the litigation is not an appropriate consideration in determining whether to order preservation of documents. Read More

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