Archive: April 2005

1
Email from In-house Counsel Forwarded within Company Retains Privilege; Inadvertent Production Does Not Waive Privilege
2
Privilege Not Necessarily Waived Where Email Between Employee and Personal Attorney Maintained on Corporate Email System
3
Ninth Circuit Denies Writ of Mandamus: Privilege Objections Waived by Failure to Provide Privilege Log at Time Discovery Responses Served
4
Advisory Committee Approves Amendments to Federal Rules of Civil Procedure
5
Electronic discovery ‘part of potentially every case in the 21st Century’
6
Failure to Produce Entire Web Page Constitutes Sanctionable Conduct
7
Zubulake Awarded $20.1 Million in Punitive Damages and $9.1 Million in Compensatory Damages

Email from In-house Counsel Forwarded within Company Retains Privilege; Inadvertent Production Does Not Waive Privilege

Premiere Digital Access, Inc. v. Central Telephone Co., 360 F.Supp.2d 1168 (D. Nev. 2005)

Premiere Digital Access, Inc. (“Premiere”) is suing Central Telephone Co. d/b/a/ Sprint of Nevada (“Sprint”) for breach of contract, violation of the covenant of good faith and fair dealing, restraint of trade, and unconscionable contract. Premiere, an Internet service provider (“ISP”), had an agreement with Sprint whereby Sprint was to provide certain services to facilitate Internet access for Premiere’s customers. Read More

Privilege Not Necessarily Waived Where Email Between Employee and Personal Attorney Maintained on Corporate Email System

In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y. 2005)

Asia Global Crossing, Ltd. and Asia Global Crossing Development Co. (collectively “Asia Global”) were pan-Asian telecommunication carriers which filed for bankruptcy under Chapter 11 on November 17, 2002. Asia Global had five principal corporate officers (“the Insiders”). The bankruptcy was converted to Chapter 7 on June 10, 2003 and Robert Geltzer was appointed trustee.

In July 2003, the Insiders’ counsel learned that allegedly privileged email had been left behind when Geltzer ordered the premises vacated (John Scanlon, the CEO, received the order while out-of-town and hastily complied.) The Insiders’ counsel asked Geltzer’s counsel to keep this email confidential. Allegedly privileged hard copy was later found to have also been left behind. It was segregated and held with the email. Read More

Ninth Circuit Denies Writ of Mandamus: Privilege Objections Waived by Failure to Provide Privilege Log at Time Discovery Responses Served

Burlington Northern & Santa Fe Railway Co. v. United States District Court for the District of Montana, 2005 WL 730193 (9th Cir. 2005)

Brian and Ryann Kapsner (“the Kapsners”) brought suit against Burlington Northern & Santa Fe Railway Co. (“Burlington”) on July 12, 2002, alleging that Burlington had dumped diesel oil and toxic solvents on their land resulting in contamination. The discovery process was fraught with controversy. The Kapsners filed their first request for production on November 6, 2002. Burlington responded on December 9, 2002, but without a privilege log despite both parties intending and expecting its production. Read More

Advisory Committee Approves Amendments to Federal Rules of Civil Procedure

On April 14-15, 2005, the Civil Rules Advisory Committee met to discuss the fate of proposed amendments to Federal Rules of Civil Procedure relating to e-discovery. Taking into consideration feedback received during the recent public comment period, the Advisory Committee approved amendments to Rules 16, 26, 33, 34, and 45. The Committee also approved, in principle, amendments to Rule 37. Read More

Failure to Produce Entire Web Page Constitutes Sanctionable Conduct

Beck v. Atlantic Coast PLC, 868 A.2d 840 (Del. Ch. Feb. 11, 2005)

This case was brought as a class action seeking relief and damages in connection with the marketing and sale of “Window Power Tools.” This allegedly sham product, developed by Digital Millennium, Inc. (“DMI”) and Salaman Zafar of Pakistan and sold via Atlantic Coast PLC, was advertised as being capable of optimizing Windows. Heinrich Beck, the proposed class representative and alleged victim of the scheme, was in fact a savvy Internet user who was not victimized and decided to pursue those responsible for the product. Beck’s web page revealed his true identity and motivation, but its entirety was wrongfully withheld and only revealed via an Internet search by Atlantic Coast. Read More

Zubulake Awarded $20.1 Million in Punitive Damages and $9.1 Million in Compensatory Damages

This exceptionally large award was ordered in a landmark employee discrimination case that addressed important e-discovery issues including the preservation of email, cost-shifting, and the restoration of backup tapes.

Zubulake’s counsel told the jury that UBS had destroyed email and its officials had lied in court.

Judge Scheindlin instructed the jury to assume that email not preserved by UBS after Zubulake filed her complaint with the EEOC would have hurt UBS’ case.

UBS says that it will appeal.

The story can be found at here.

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