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.Continue Reading...
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."Continue Reading...
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.Continue Reading...
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.Continue Reading...
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.
March 15-16, 2005
Sheraton Fisherman's Wharf Hotel, San Francisco
Produced by American Conferences
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.'"Continue Reading...
On January 12, 2005 in San Francisco, the Civil Rules Advisory Committee heard testimony from 15 witnesses. This was the first of three public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. The following are some highlights of the testimony. The complete testimony can be found here.Continue Reading...
Green v. Baca, 225 F.R.D. 612 (C.D.Cal. 2005)
In this case, the court found that plaintiff's efforts to obtain discovery regarding the over-detention of inmates in the Los Angeles County jail system were "unduly complicated and extraordinarily delayed by the failure of the County and/or its counsel to investigate promptly and effectively the records available, both in hard-copy and computer-based formats, regarding such over-detentions." For almost nine months, the court and plaintiff's counsel were never specifically apprised of the availability of computer-based records regarding over-detentions, despite extensive questioning by the court and court orders that declarations be provided regarding the availability of such documents and the burden associated with their production.Continue Reading...
Treace v. UNUM Life Ins. Co., 2004 WL 3142215 (W.D.Tenn. Aug. 10, 2004)
Insured sued UNUM Life Insurance Company for breach of contract, bad faith, and related torts based upon Unum's denial of her disability claim. In response to an interrogatory seeking the identities of individuals who had contact with plaintiff about the claim, Unum represented that any record of telephone conversations with a claimant were kept in the claim file (which had already been produced) and it would be the same burden on both parties to search through those records to compile a "telephone log."Continue Reading...
Icu Medical, Inc. v. B. Braun Medical, Inc., 2005 WL 151927 (N.D.Cal. Jan. 4, 2005)
In response to a joint discovery dispute letter in which defendant sought an order requiring plaintiff to conduct an adequate search for documents in response to defendant's production requests, the magistrate judge ordered:
(1) To the extent not already completed, plaintiff shall search all computerized files, emails, voice mails, work files, desk files, calendars and diaries, and any other locations and sources if materials of the type to be produced might plausibly be expected to be found there. Said search shall be completed no later than January 25, 2005;Continue Reading...