Archive: January 2005

1
Failure to Serve Privilege Log by Court’s Deadline Did Not Effect Waiver
2
Sanctions Not Warranted for Failure to Preserve Voicemail Messages
3
Report from the First Public Hearing on Proposed Changes to the Federal Rules of Civil Procedure Addressing E-Discovery
4
Defendant’s Use of “Evidence Eliminator” Software Warrants Adverse Inference
5
Magistrate Recommends Default Judgment Against “Big Four” Accounting Firm for Electronic Discovery Abuses
6
Court Upholds $2,442,440.97 in Discovery Abuse Sanctions
7
Summary Judgment for Defendants Ends Rowe Entm’t, Inc.
8
Microsoft Corporation Comments on Proposed Amendments to the Federal Rules of Civil Procedure
9
Written Comments to the Federal Civil Rules Available Online
10
Ten Tips For Electronic Discovery: Judge Shira A. Scheindlin Speaks On Proposed Rules Changes And Surviving E-Discovery Without Sanctions

Failure to Serve Privilege Log by Court’s Deadline Did Not Effect Waiver

Streamline Capital, LLC v. Hartford Cas. Ins. Co., 2005 WL 66898 (S.D.N.Y. Jan. 11, 2005)

Previously, the defendant had sought sanctions for spoliation of evidence, arguing that plaintiff’s two principals (key witnesses in the case) had systematically deleted potentially relevant emails before and during the litigation. At that time, the magistrate judge deferred any decision on sanctions and ordered the two witnesses to consent to the production of pertinent emails still available through their email service companies in order to determine, to the extent possible, the degree of prejudice defendant suffered by virtue of the deletions. See Streamline Capital LLC v. Hartford Cas. Ins. Co., 2004 WL 2663564 (S.D.N.Y. Nov. 19, 2004). The court ordered that any recovered emails be delivered to plaintiff’s counsel to review for privilege, and that the balance of the emails be produced to defendant. This most recent opinion addresses defendant’s motion to compel production of several of the recovered emails withheld by plaintiff as privileged.

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Sanctions Not Warranted for Failure to Preserve Voicemail Messages

Burrell v. Anderson, 353 F.Supp.2d 55 (D. Me. 2005)

Plaintiff sued county and various employees of police department and attorney general’s office alleging due process, equal protection, First Amendment, and civil rights conspiracy claims stemming from incidents involving either plaintiff and his former girlfriend, or their daughter. Plaintiff contended that the defendant employees improperly responded or unacceptably failed to respond to these incidents because of gender-discriminatory attitudes and policies pertaining to domestic abuse. Read More

Report from the First Public Hearing on Proposed Changes to the Federal Rules of Civil Procedure Addressing E-Discovery

The first of three scheduled public hearings regarding proposed changes to the FRCP addressing electronic discovery took place in San Francisco January 12, 2005. Fifteen members of the legal community took advantage of the opportunity to publicly voice their views of the proposed amendments.

The diverse group included in-house counsel from corporations such as Microsoft and Intel, private practitioners – including both plaintiff and defense attorneys, and a computer forensic specialist. Participants commented on what they saw as the pros and cons of a series of proposed amendments to the FRCP designed to provide additional guidance to the courts and litigants engaged in the ever-growing area of e-discovery.

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Defendant’s Use of “Evidence Eliminator” Software Warrants Adverse Inference

DirecTV, Inc. v. Borow, 2005 WL 43261 (N.D.Ill. Jan. 6, 2005)

In this case, the court granted summary judgment in favor of plaintiff DirecTV and against defendant Randy Borow on claims stemming from Borow’s unauthorized use of plaintiff’s satellite television signal. Summary judgment was warranted, in part, because defendant had not offered sufficient evidence to rebut the presumption that arose from his destruction of relevant evidence.

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Magistrate Recommends Default Judgment Against “Big Four” Accounting Firm for Electronic Discovery Abuses

In re Telxon Corp. Securities Litigation, 2004 WL 3192729 (N.D.Ohio July 16, 2004)

Recommending that default judgment on liability be entered against third party defendant, PricewaterhouseCoopers, LLP, the judge stated “it would be difficult for anyone to argue that PWC’s conduct over the course of the litigation, particularly its repeated assurances to the court and to the parties that it had fully disclosed all relevant information, was not due to willfulness, bad faith or fault.” The judge criticized PWC for, among other things: failing at the start of discovery to check thoroughly its local servers and its archives for relevant documents, failing to produce documents as they were kept in the ordinary course of business, failing to reproduce thoroughly and accurately all documents and their attachments, and, prior to litigation, permitting the destruction of documents despite committing to their preservation. The court stated the only conclusion it can reach “is that PWC and/or its counsel engaged in deliberate fraud or was so recklessly indifferent to their responsibilities as a party to litigation that they failed to take the most basic steps to fulfill those responsibilities.”

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Court Upholds $2,442,440.97 in Discovery Abuse Sanctions

Nartron Corp. v. General Motors Corp., 2005 WL 26991 (Mich. Ct. App. Jan. 6, 2005) (unpublished)

In a prior appeal, the court affirmed the trial judge’s order granting summary judgment dismissing plaintiff’s breach of contract claim and dismissing with prejudice plaintiff’s remaining claims as a sanction for discovery abuses. See Nartron Corp. v. Gen. Motors Corp., 2003 WL 1985261 (Mich. Ct. App. Apr. 29, 2003) (unpublished). Thereafter, the trial court entered judgment ordering plaintiff to pay costs and sanctions in the amount of $2,442,440.97, representing $1,912,630.66 in attorneys’ fees, $159,542.10 in legal assistant fees, $361,641.71 in expert witness fees, and additional costs for the special discovery master. The trial court further ordered plaintiff to pay prejudgment interest in the amount of $1,708,515.77, for a total judgment of $4,150,956.24.

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Summary Judgment for Defendants Ends Rowe Entm’t, Inc.

Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005)

The court recently granted summary judgment for the defendants in this seminal E-discovery cost-shifting case, having concluded that plaintiffs “raised no genuine issue of material fact and that no rational trier of fact could find for plaintiffs on any of the myriad of claims made in this action.” Plaintiffs were concert promoters who claimed that booking agencies and other promoters had engaged in discriminatory and anti-competitive practices.

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Microsoft Corporation Comments on Proposed Amendments to the Federal Rules of Civil Procedure

Microsoft Vice President & Deputy General Counsel Tom Burt recently submitted comments and a visual diagram to the Committee on Rules of Practice and Procedure, which is currently accepting public comment regarding the proposed amendments to the Federal Rules of Civil Procedure addressing electronic discovery. Gregory S. McCurdy, Senior Attorney at Microsoft, will also be testifying before the Advisory Committee on January 12, 2005, in San Francisco at the first of three public hearings. Subsequent hearings are being held in Dallas, Texas, on January 28, 2005, and in Washington, D.C., on February 11, 2005.

Ten Tips For Electronic Discovery: Judge Shira A. Scheindlin Speaks On Proposed Rules Changes And Surviving E-Discovery Without Sanctions

The rules of civil procedure are once again being amended, this time to update them for document production in the digital age. Judge Shira A. Scheindlin talks about what the proposed changes will mean for in-house counsel. She also gives advice and her top ten tips on conducting e-discovery in the current murky shadow of Rule 26, to avoid garnering sanctions for inadvertently violating a discovery order, or worse yet charges of spoliation of evidence. [Subscription to the ACC Docket required.]

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