Archive: February 2005

1
Electronic Discovery Sanctions in the Twenty-First Century
2
Highlights from the Second Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure
3
Injunction Prohibiting “Routine” Disposal of Business Records Unrelated to Dispute Is Overbroad
4
J.P. Morgan paying $2.1 million in settlement over e-mail retention
5
Court Allows Use of Electronic Documents at Trial Despite Late Disclosure
6
Pharmaceutical Industry’s Guide to Document Management and E-Discovery
7
Court Orders Party to Correct Technical Problems with Electronic Production, Declines to Appoint Neutral Consultant
8
Reminder: Last Chance to Submit Comments on Proposed Changes to the Federal Rules of Civil Procedure
9
Second National Advanced Forum on Document Retention & E-Discovery
10
Judge Denies Forensic Search of Employer’s Information Systems to Confirm “Highly Speculative Conjecture”

Electronic Discovery Sanctions in the Twenty-First Century

Judge Scheindlin, United States District Court Judge for the Southern District of New York, has co-authored an article that surveys decisions concerning e-discovery sanctions issued since January 1, 2000. The article is meant to provide guidance for e-discovery reform by examining what state and federal courts have considered to be sanctionable conduct and the sanctions that have been imposed. Full text of the article can be found here.

Highlights from the Second Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure

On January 28, 2005 in Dallas, the Civil Rules Advisory Committee held the second of three public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. The committee heard testimony from 18 individuals. Following are some highlights of the testimony. The complete testimony can be found at here. Read More

Injunction Prohibiting “Routine” Disposal of Business Records Unrelated to Dispute Is Overbroad

Computek Computer & Office Supplies, Inc. v. Walton, 2005 WL 352036 (Tex.App. Feb. 15, 2005)

Plaintiff sued competing business and its owner, alleging that owner used trade secrets obtained during his employment with plaintiff to form the competing company. The trial court ruled in favor of plaintiff and awarded it actual and exemplary damages. In addition, the trial court entered a permanent injunction against defendant which enjoined defendant from, among other things, “[r]emoving or destroying any files, or copies of files, including but not limited to Defendants’ computer or computer files.” Read More

Court Allows Use of Electronic Documents at Trial Despite Late Disclosure

Klyuch v. Freightmasters, Inc., 2005 WL 318786 (D.Minn. Feb. 9, 2005)

In this employment discrimination case, the defendant sought to amend its trial exhibit list to include three recently discovered electronic documents which it contended were “germane to the outstanding issues” set to be tried. The defendant provided the documents to opposing counsel as soon as it discovered them, and the court found that there was no evidence of bad faith on behalf of the defendant. The plaintiff argued that the late disclosure was unduly prejudicial. Read More

Pharmaceutical Industry’s Guide to Document Management and E-Discovery

April 19-20, 2005
Park Hyatt Hotel, Phladelphia
Produced by American Conferences

Similar to the Second Annual Advanced Forum on Document Retention & E-Discovery, this CLE is geared specifically to the pharmaceutical industry. Representatives from Bayer, GlaxoSmithKline, Merck, Pfizer, Wyeth and others will be on hand to share their perspectives. Download the conference flyer here.

Court Orders Party to Correct Technical Problems with Electronic Production, Declines to Appoint Neutral Consultant

United States v. Merck-Medco Managed Care, L.L.C., 2005 WL 273030 (E.D.Pa. Feb. 2, 2005)

This opinion addresses the plaintiff’s motion to modify the case management order and establish certain discovery deadlines, as a result of defendant Medco’s electronic document production failings.

Earlier, Medco had notified the court of its failure to comply with the court’s deadline for document production a week after the deadline had passed. At the same time, Medco failed to inform the court when production would be complete or what documents still needed to be produced. Several weeks later, Medco claimed that its electronic document production was complete, with three exceptions: (1) documents that were withheld as privileged but that may not be privileged; (2) thirteen additional boxes; and (3) corrupted data that Medco was restoring. Plaintiffs, however, claimed that Medco’s electronic document production was still incomplete because several disks were defective and because there were major technical defects discovered in the electronic claims data that Medco had produced, including: (1) hard drive disk errors; (2) files containing questionable or missing data; and (3) and other technical file related issues. Read More

Reminder: Last Chance to Submit Comments on Proposed Changes to the Federal Rules of Civil Procedure

On August 10, 2004, the Standing Committee on Rules of Practice and Procedure approved for publication and public comment several proposed amendments to the Federal Civil Rules that specifically address electronic discovery. The public comment period for these proposed amendments is now nearing its end. The last date for submissions is February 15, 2005.

A copy of the proposed amendments, and the corresponding Committee Notes, can be found here. Comments may be submitted electronically to the Secretary of the Standing Committee, via a link on the federal rulemaking website.

Second National Advanced Forum on Document Retention & E-Discovery

March 15-16, 2005
Sheraton Fisherman’s Wharf Hotel, San Francisco
Produced by American Conferences

Preston Gates’ Helen Moure will be co-presenting a session on Strategic Considerations for Document Storage and Retrieval with Robert E. Norton, Senior Counsel, Daimler-Chrysler Corporation

This conference will focus on providing strategic guidance on creating document retention policies as well as tools and techniques for limiting the scope and cost of e-discovery. Faculty will include representatives from Cargill, ExxonMobil, General Motors, Pfizer and Tyco, as well as a suite of federal court judges.

Judge Denies Forensic Search of Employer’s Information Systems to Confirm “Highly Speculative Conjecture”

Williams v. Mass. Mut. Life Ins. Co., 226 F.R.D. 144 (D. Mass. 2005)

In this wrongful termination case, plaintiff sought the court’s help in obtaining from defendant employer a particular email he claimed to have seen and possessed at one point, but no longer possessed. He sought an order appointing a neutral computer forensics expert to conduct the search for the email, and, in the event the email was discovered, to conduct an additional, more detailed electronic investigation “‘to locate and retrieve all electronic communications related to his employment and termination that have not as yet been produced by defendants.'” He also sought an order requiring defendants to “‘preserve all documents and information, whether in electronic or paper form, to suspend all recycling of any backup tapes, any automated deletion of e-mail, the reformatting of hard drives, and/or that an appropriate medium for retention of this type of data be disclosed and utilized.'” Read More

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