Archive: June 2005

1
Panel Discusses Differences in Electronic Discovery in New York State and Federal Courts
2
Court Not Convinced that Order Requiring Gillette to Hire Vendor for Extensive Electronic Discovery Warranted
3
Failure to Create Data Distinguished from Spoliation and Not Subject to Sanction
4
Standing Committee Approves Proposed Amendments to Federal Rules of Civil Procedure
5
Online Questionnaire Submitted by Prospective Clients Confidential Despite Waiver of Attorney-Client Relationship
6
This is Spinal Tech
7
Spoliation Instruction Appropriate where Defendants Failed to Preserve Email
8
Seventh Circuit Reverses Sanction Requiring Production of Documents Listed on Privilege Log
9
Navy Required to Query Database for Production of Relevant Data
10
Use of Evidence Eliminator Results in Default Judgment Recommendation and Award of $145,811.75 in Expenses and Costs

Panel Discusses Differences in Electronic Discovery in New York State and Federal Courts

During the New York State Bar Association’s Annual 2005 Meeting of the Commercial and Federal Litigation Law Section, a panel of attorneys and judges discussed current issues in connection with electronic discovery and differences in state and federal courts.

Federal and New York State electronic discovery cases were noted, with substantial discussion centered upon Judge Scheindlin’s Zubulake decisions. Panelist comments covered topics including spoliation, litigation holds, cost shifting, rule changes, and procedural matters.

A transcript of the discussion, published in NYLitigator, can be found here.

Court Not Convinced that Order Requiring Gillette to Hire Vendor for Extensive Electronic Discovery Warranted

Galvin v. Gillette Co., 2005 WL 1476895 (Mass. Super. May 19, 2005) (Unpublished)

On January 27, 2005, The Proctor & Gamble Company (“Proctor & Gamble”), acting through Aquarium Acquisition Corp., agreed to merge with The Gillette Company (“Gillette”). William Francis Galvin, Secretary of the Commonwealth of Massachusetts (“the Secretary”) has certain statutory authority allowing him to investigate fairness opinions issued by UBS and Goldman, Sachs in support of the merger. The Secretary opened an investigation and caused a subpoena duces tecum to be served on Gillette. When Gillette refused to comply, he sought an order forcing compliance. The subpoena was found too far reaching given that the investigation was supposed to address whether the fairness opinions were fraudulent. The court quashed the subpoena without prejudice. See Galvin v. Gillette Co., 19 Mass.L.Rptr. 291 (Mass.Super, April 28, 2005). Read More

Failure to Create Data Distinguished from Spoliation and Not Subject to Sanction

Getty Properties Corp. v. Raceway Petroleum, Inc., 2005 WL 1412134 (D.N.J. June 14, 2005)

In 1992, Defendant Third-Party Plaintiff Raceway Petroleum, Inc. (“Raceway”) leased a property from Plaintiff Getty Properties Corp. and Third-Party Defendant Power Test Realty, Co., Ltd. (collectively, “Getty”). The property had been used for a gas station by Getty from 1975 to 1992. Raceway began operating its gas station on the site in 1993. Both acknowledged in 1992 that the property was contaminated with gasoline, and Getty was to be responsible for the remediation of any contamination existing prior to the occupation by Raceway. In 1996, the New Jersey Department of Environmental Protection noted a gasoline discharge at the property. Getty sued Raceway, alleging that Raceway was responsible for contamination in September 1999. Raceway filed a counterclaim, and motions were filed seeking sanctions for discovery abuses. Read More

Standing Committee Approves Proposed Amendments to Federal Rules of Civil Procedure

The Standing Committee on Rules of Practice and Procedure today approved the amendments submitted by the Civil Rules Advisory Committee addressing discovery of electronically stored information.

The proposed text of each rule was approved without change; some changes were made to the committee notes. The entire package of amendments will be posted here when available.

Further approval is still necessary before the rules go into effect. The Judicial Conference will consider the package at its September 20, 2005 meeting. Then, the Supreme Court will consider it for promulgation (probably by May 1, 2006). An effective date of December 1, 2006 is expected.

Online Questionnaire Submitted by Prospective Clients Confidential Despite Waiver of Attorney-Client Relationship

Andrew Barton et al. v. United States District Court for the Central District of California, 2005 WL 1355481 (9th Cir. 2005)

A law firm posted a questionnaire on the Internet to gather information regarding class members for potential litigation against SmithKline Beecham Corporation (“SmithKline”). The action under consideration was for injury related to use of the anti-depressant medication Paxil. The firm decided to pursue the matter, and SmithKline sought production of completed questionnaires in order to compare responses to plaintiffs’ deposition testimony. U.S. Judge Mariana Pfaelzer held that confidentiality was waived via disclaimers on the questionnaires, despite the questionnaires constituting preliminary consultations with attorneys which are normally privileged. She ordered production of the four trial plaintiffs’ questionnaires, and plaintiffs sought a writ of mandamus to reverse this decision arguing that the questionnaires are subject to attorney-client privilege. Read More

This is Spinal Tech

In this month’s issue of Corporate Counsel Magazine, Amy Kolz reports on the amazing technology used in connection with the Medtronic spinal surgical inventions litigation. The case resulted in a $560 million verdict against Medtronic, and a $1.35 billion settlement followed.

Attorneys worked from 9 AM to 8 PM piloting seven black computers from a conference room. These “Death Star Pilots,” flying with Attenex Patterns software, sifted through 44 million electronic pages in less than four months. They succeeded in finding critical documents. “I remember seeing that [critical] document and thinking this is the reason we fought so hard for the electronic information.”

The article can be found here.

Spoliation Instruction Appropriate where Defendants Failed to Preserve Email

Arndt v. First Union Nat’l Bank, 613 S.E.2d 274
(N.C. Ct.App. 2005)

Donald Arndt (“Arndt”) was hired by First Union National Bank (“First Union”) in June 1996 with an initial salary of $90,000 per year and a guaranteed minimum incentive payment of $90,000. Brian Simpson (“Simpson”), Arndt’s manager, orally agreed to pay Arndt 20% of all net income that Arndt generated. First Union decided to implement a more subjective bonus formula in 1999 and reduced Arndt’s bonus to about 10% in 2000, allegedly due to a failed project and poor employee evaluation ratings. Read More

Seventh Circuit Reverses Sanction Requiring Production of Documents Listed on Privilege Log

American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of the United States, 406 F.3d 867 (7th Cir. 2005)

American National Bank and Trust Co. of Chicago, as Trustee f/b/o Emerald Investments LP, and Emerald Investments LP (“Emerald”) sued Equitable Life Assurance Society of the United States (“Equitable”) in tort and contract, asserting that Equitable was trying to restrict Emerald’s sub-trading of annuities purchased from Equitable. Equitable tried to protect a number of documents by asserting attorney-client privilege. Emerald resisted by arguing that Equitable was withholding non-privileged material and repeatedly challenging defendant’s privilege log. Read More

Navy Required to Query Database for Production of Relevant Data

Jinks-Umstead v. England, 227 F.R.D. 143 (D.D.C. 2005)

Plaintiff, a Contracting Officer, claimed that decisions by the Navy to reduce staffing and remove her supervisory status were in violation of Title VII of the Civil Rights Act. The Navy responded that its actions were prompted by legitimate business reasons. A new trial had been ordered, partly because the Navy produced work in place (“WIP”) reports in the middle of the trial despite earlier representations that reports were not available. These reports might show whether staffing changes were appropriately justified. Plaintiff filed four post-trial discovery motions. All were denied, other than the motion to compel the Navy to supplement initial disclosures and responses to requests for production, which was granted in part. Read More

Use of Evidence Eliminator Results in Default Judgment Recommendation and Award of $145,811.75 in Expenses and Costs

Communications Center, Inc. v. Matthew Hewitt, et al., Civil No. S-03-1968 WBS KJM (E. D. Cal. Apr. 5, 2005)

In this case, where plaintiff alleged multiple causes of action, the court ordered defendant to provide mirror images of any hard drives in defendant’s possession that contained documents responsive to plaintiff’s requests for production. Documents were to be designated “Attorney’s Eyes Only” and subject to protective order. Defense counsel indicated that nothing would be withheld. Nevertheless, electronic evidence was destroyed and plaintiff filed a motion for sanctions. Read More

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