Archive: March 2005

1
The Legal and Strategic Guide to E-Discovery: West
2
Computer Experts and Court Appointed Referee to Clone Hard Drives and Distribute Specified Hard Copies to Litigants
3
Morgan Stanley’s Failure to Produce Documents Found Offensive; Coleman’s Renewed Motion for Entry of Default Judgment Is Granted (in part)
4
Dealing with Data: No, You Can’t Call Them Documents Anymore
5
Judge Maass Grants Adverse Inference Instruction in Coleman v. Morgan Stanley
6
State Court Issues Preservation Order Despite Some Overlap with Existing Federal Preservation Orders
7
Are you prepared for the e-discovery FRCP?
8
Zubulake VI: Court Rules on Various Motions in Limine and Precludes Admission of Certain Evidence Unless Defendants “Open the Door”
9
Federal Court Declines to Exercise Supplemental Jurisdiction Over State Law Claims Stemming From Execution of State Court’s Preservation Order
10
Highlights (Day 2) from the Third Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure

The Legal and Strategic Guide to E-Discovery: West

Best Practices for Corporate Counsel
San Francisco Marriott Fisherman’s Wharf
April 7-8, 2005

This senior-level forum will provide a legislative and strategic update on how to effectively manage electronic information. Corporate counsel will learn how to protect themselves against e-discovery claims before they spiral out of control. Up to the minute case studies and presentations presented by a distinguished, multi-disciplinary faculty will provide insight on how to effectively manage the costs of disclosure, whether before or during litigation.

Featured speakers include Gregory McCurdy, Senior Counsel, Litigation, Microsoft, Elenora Mantovani, AGC, Apple Computer, Neal Rubin, Senior Litigation Counsel, Cisco Systems, and Edward C. Wolfe, Attorney, General Motors.

Click here for complete conference details.

Computer Experts and Court Appointed Referee to Clone Hard Drives and Distribute Specified Hard Copies to Litigants

Etzion v. Etzion, 2005 WL 689468 (N.Y.Sup. Feb 17, 2005)

In this matrimonial matter, Plaintiff moved by order to show cause for an order allowing her (with the help of a sheriff) to “gain access” to Defendant’s premises and impound, clone, and inspect items containing electronic data. The order was also to shift costs to Defendant and direct Defendant not to make business data inaccessible. The requests were denied, although the Appellate Division granted the part directing Defendant not to disrupt business data. Defendant opposed and cross-moved for a $15 million bond and making Plaintiff responsible for potential harm to his business interests. Read More

Morgan Stanley’s Failure to Produce Documents Found Offensive; Coleman’s Renewed Motion for Entry of Default Judgment Is Granted (in part)

Judge Maass issued this order on March 23 in Coleman v. Morgan Stanley, a case in which Coleman Holdings is seeking $680 million in losses and $2 billion in punitive damages in connection with Morgan Stanley helping Sunbeam to falsely inflate its finances. Read More

Dealing with Data: No, You Can’t Call Them Documents Anymore

In this March/April 2005 article from Business Law Today, George L. Paul and Robert F. Copple outline steps for a business to follow in developing data life-cycle policies. Such policies are designed to ensure that necessary data is preserved (in connection with litigation and Sarbanes-Oxley, for example) yet the business does not “drown in its digital waste.”

Full text of the article can be found here.

Judge Maass Grants Adverse Inference Instruction in Coleman v. Morgan Stanley

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005)

Coleman (Parent) Holdings, Inc. (“CPH”) sued Morgan Stanley & Co., Inc. (“MS & Co.”) for fraud in connection with CPH’s sale of its stock in Coleman, Inc. to Sunbeam Corporation. Establishing whether MS & Co. had knowledge of Sunbeam’s fraudulent scheme was central to the case, and CPH sought access to MS & Co. documents, including email. Read More

State Court Issues Preservation Order Despite Some Overlap with Existing Federal Preservation Orders

Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005) (Unpublished)

Plaintiff brought a putative class action in New York state court alleging that Unumprovident Corporation had engaged in an elaborate scheme to limit its liability to policyholders by denying meritorious claims based on economic factors having nothing to do with insureds’ actual qualifications under the policies. Plaintiff named Unumprovident as a defendant, as well as two other disability insurers. Eight other similar class actions are part of a Multi-District Litigation (“MDL”) pending in the United States District Court for the Eastern District of Tennessee, Unum’s home venue. In addition, six pending securities class actions accuse Unum of implementing the decade long scheme and seek damages for Unum’s alleged failure to maintain sufficient reserves to account for any resulting liabilities. Other related class actions and derivative shareholder suits are also pending against the defendant based on similar claims. Preservation orders were entered in the MDL case and in Keir v. UnumProvident Corp., which required UnumProvident to preserve 25 categories of documents dating back approximately 10 years, including substantially all computer disks and drives, and email files. Read More

Are you prepared for the e-discovery FRCP?

An interesting article from PG Lewis & Associates’ March 2005 e-Newsletter on the recently released American Bar Association corporate counsel survey. Among other findings, the survey brings to light that more than “80 percent of Corporate counsel members are not aware of or familiar with the e-discovery ammendments.”

The original ABA survey report, ABA Digital Evidence Project Survey on Electronic Discovery Trends and Proposed Amendments to the Federal Rules of Civil Procedure, was published in February 2005.

Zubulake VI: Court Rules on Various Motions in Limine and Precludes Admission of Certain Evidence Unless Defendants “Open the Door”

Zubulake v. UBS Warburg LLC., 382 F.Supp.2d 536 (S.D.N.Y. 2005)

In her sixth opinion in this case, Judge Scheindlin ruled on the parties’ motions in limine, several of which related to e-discovery issues that were the topics of prior decisions:

1. Defendants moved to preclude the introduction of evidence regarding the court’s previous decisions in the case, including the imposition of sanctions on UBS. Granting the motion, the court agreed with defendants that the earlier decisions were irrelevant to plaintiff’s discrimination claims and would unfairly prejudice UBS. The court noted that the jurors would be told all they need to know through the evidence admitted at trial and through the court’s charge, and that there was no need to reference the court’s earlier decisions. Read More

Federal Court Declines to Exercise Supplemental Jurisdiction Over State Law Claims Stemming From Execution of State Court’s Preservation Order

Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2005 WL 517342 (E.D. La. Feb. 24, 2005)

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. Read More

Highlights (Day 2) from the Third Public Hearing on Proposed Amendments to the Federal Rules of Civil Procedure

On February 11-12, 2005 in Washington, D.C., the Civil Rules Advisory Committee heard testimony from over 45 witnesses. This was the third and final set of public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. Following are some highlights of the testimony from day two of the hearing, when the committee heard from 13 witnesses. The complete testimony for this hearing, and the previous hearings, can be found here. Read More

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