Header graphic for print
Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Monthly Archives: December 2004

Taking The Fear Factor Out Of E-Mail

Posted in NEWS & UPDATES

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… Continue Reading

Electronic Records Open Up Fertile Legal Research Field

Posted in NEWS & UPDATES

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…. Continue Reading

Legal Tech New York 2005

Posted in EVENTS

Legal Tech New York is the world’s largest technology tradeshow and conference in the legal industry [7,500+ attendees.] January 31 – February 2, 2005. Hilton New York, New York City.

Eight Simple Steps for Doing Effective E-Discovery

Posted in NEWS & UPDATES

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

Posted in CASE SUMMARIES

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… Continue Reading

Plaintiff Potentially Liable in Tort for Electronic Collection Sanctioned by Court

Posted in CASE SUMMARIES

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…. Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

Magistrate Orders Witnesses to Authorize Retrieval of Email from Service Providers

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

Court Refines Balancing Test for Evaluating Motions for Preservation Orders

Posted in CASE SUMMARIES

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… Continue Reading

Court Directs Production of Electronic Material in Native Format

Posted in CASE SUMMARIES

Jicarilla Apache Nation v. United States, 60 Fed.Cl. 413 (2004) In a case involving claims by a Native American Indian tribe against the United States based upon the government’s mismanagement of trust funds, the court entered a confidentiality agreement and protective order which provided, among other things:

Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents

Posted in CASE SUMMARIES

Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004) Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged documents, but did not conduct a review for responsiveness to plaintiff’s specific document requests. Instead,… Continue Reading

Court Orders Production of Documents Related to Retention Policy in light of “Shred Day”

Posted in CASE SUMMARIES

Rambus, Inc. v. Infineon Tech. AG, 220 F.R.D. 264 (E.D. Va. 2004) Plaintiff had brought parallel patent infringement suits against a number of defendants in several forums. After it was discovered that the plaintiff had committed various acts of litigation misconduct, including the intentional destruction of relevant documents, the defendant moved to compel discovery into… Continue Reading

Production of Electronic Materials Ordered without Cost-shifting Despite Claims of Undue Burden

Posted in CASE SUMMARIES

Super Film of America, Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D.Kan. 2004) Defendant sought discovery of electronic versions of e-mail, documents, databases and spreadsheets falling within the scope of Fed.R.Civ.P. 26 or defendant’s document requests. Plaintiff had made available to SFA non-archived electronic versions of e-mail, documents and spreadsheets, and stated that it… Continue Reading

Court to Require Production of Electronic Data Index Only if Quick and Cheap Searching of CD-ROMs Unavailable

Posted in CASE SUMMARIES

In re Lorazepam & Chlorazepate Antitrust Litig., 300 F.Supp.2d 43 (D.D.C. 2004) Plaintiffs are Blue Cross Blue Shield of Minnesota and of Massachusetts, the Federated Mutual Insurance Company, and the Health Care Service Corporation (“the Blues”). They opted out of a settlement premised on antitrust violations by the defendant, Mylan Laboratories (“Mylan”).

Defendant Precluded from Using 80,000 Emails It Belatedly Produced

Posted in CASE SUMMARIES

Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93 (D.Md. 2003) Plaintiff filed a motion in limine to bar the defendant from calling certain witnesses based upon the defendant’s failure to produce 80,000 responsive email records until long after the discovery cut-off deadline. After making its initial rulings, and having observed… Continue Reading

Court Denies Motion Requiring Defendant to Allow Plaintiff onto Premises for Collection of Electronic Material

Posted in CASE SUMMARIES

Bethea v. Comcast, 218 F.R.D. 328 (D.D.C. 2003) Plaintiff in an employment discrimination suit moved for an order compelling defendants to allow her to enter upon their premises, inspect their computer systems and related programs, and copy any information relevant to her claims. Plaintiff was dissatisfied with the results of the discovery process and suspected… Continue Reading

Court Directs Production in Native Electronic Form Notwithstanding Prior Hard Copy Production

Posted in CASE SUMMARIES

In re Honeywell Int’l, Inc. Sec. Litig., 230 F.R.D. 293 (S.D.N.Y. 2003) Class plaintiffs served a third party subpoena on defendant’s accountant, PriceWaterhouseCoopers (“PWC”), and PWC produced approximately 63,500 pages of documents. Plaintiffs moved to compel production of certain categories of documents withheld by PWC from that production, while PWC cross- moves to quash the… Continue Reading

Court Denies Sanctions for Destruction of Certain Electronic Evidence

Posted in CASE SUMMARIES

Wiginton v. Ellis, 2003 WL 22439865 (N.D. Ill. Oct. 27, 2003) Plaintiff sued for sexual harassment as a putative class representative. During the course of discovery, the parties agreed on a preservation order; however, prior to that time, the defendant had continued its normal document retention and destruction policies, had not informed its director of… Continue Reading

Court Adopts Most of Magistrate’s Recommendations in Kucala Enter. Case

Posted in CASE SUMMARIES

Kucala Enter., Ltd. V. Auto Wax Co., Inc., 2003 WL 21230605 (N.D. Ill. Oct. 27, 2003) Ruling on plaintiff’s objections to the report and recommendations of the magistrate, the court declined to enter the ultimate sanction of default. The court adopted the factual findings of the magistrate, and adopted his recommendations with the one exception… Continue Reading

Zubulake IV: Court Denies Motion for Adverse Inference Instruction but Defendant to Pay for Re-deposing Witnesses

Posted in CASE SUMMARIES

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”) During the restoration effort described in the court’s prior opinions, the parties discovered that certain backup tapes were missing. It also became clear that certain isolated, relevant emails created after Zubulake’s initial EEOC charge had been deleted from UBS’s system, and existed only… Continue Reading