Archive: July 2005

1
The Legal and Strategic Guide to E-Discovery: Best Practices for Corporate Counsel
2
Denial of Expert Examination of Metadata Does Not Warrant New Trial
3
Defendants Held in Contempt of Order Compelling Discovery; Court Orders $25,000 Payment and Considers Incarceration of CEO and President
4
Court Did Not Abuse Discretion by Denying Motion to Strike for Failure to Produce Email
5
Sanctions Against Defendant Not Authorized Where Production of Data Disk Not Ordered by Court
6
UBS Securities to Pay $2.1 Million in Penalties and Fines for Failure to Preserve Email
7
Use of Employer-Issued Laptop Computer by Criminal Defendant for Attorney-Client Communications Does Not Waive Privilege
8
Magistrate Resolution to Limit Electronic Discovery Costs
9
Instant Messages: instant panic
10
House Bill Proposes Five Year Minimum Sentence for Document Destruction

The Legal and Strategic Guide to E-Discovery: Best Practices for Corporate Counsel

New York, NY
September 29-30, 2005

This senior level forum will go beyond the basics and will equip corporate counsel, knowledge managers and legal technology experts with the tools required to stay ahead of the E-Discovery game. Up to the minute case studies and presentations by a distinguished conference faculty will provide insight on how to manage the costs of disclosure. Attendees will learn the most advanced approaches for tackling their E-discovery issues, emerging economic models and cutting-edge technology being employed by leading companies and top electronic discovery experts. For more information, click here.

Denial of Expert Examination of Metadata Does Not Warrant New Trial

Wild v. Alster, et al., 377 F.Supp.2d 186 (D.D.C. 2005)

Susan Wild (“Wild”) sued Dr. Tina Alster (“Alster”) for malpractice in connection with laser surgery performed by Alster on Wild’s face. Alster prevailed at trial, and Wild sought a new trial alleging error in jury instructions and prejudice from discovery and evidentiary rulings. One basis for the alleged prejudice was the court’s decision not to allow expert examination of Alster’s computer to determine whether it contained dates indicating when photographs contained therein were taken. Read More

Defendants Held in Contempt of Order Compelling Discovery; Court Orders $25,000 Payment and Considers Incarceration of CEO and President

Cooney, et al. v. Beverly Enter., Inc., et al., No. CV 2003-1049-3 (Saline County Cir. Ct., Ark. June 15, 2005) (order imposing sanctions upon Beverly Defendants)

The Arkansas Daily Blog reported on June 25, 2005 that Beverly Enterprises, a nursing home chain, has recently been subject to unfavorable rulings in connection with class action litigation. A link to the entry can be found here. The litigation reportedly involves allegations of unsanitary food, unclean bathrooms, smelly premises, and substandard care. Read More

Court Did Not Abuse Discretion by Denying Motion to Strike for Failure to Produce Email

Zhuang v. Datacard Corp., 414 F.3d 849 (8th Cir. 2005)

Xuelin Zhuang (“Zhuang”) sued Datacard Corporation (“Datacard”) in connection with employment discrimination. Datacard prevailed by summary judgment, and Zhuang appealed. The Eighth Circuit affirmed with respect to claims of discrimination and retaliation, and also found that there was no abuse of discretion in denying Zhuang’s motion to strike an email for failure to disclose it during discovery. Read More

Sanctions Against Defendant Not Authorized Where Production of Data Disk Not Ordered by Court

Nieshe v. Concrete School Dist., 2005 WL 1580043 (Wash.App. July 5, 2005) (unpublished)

Jennifer Nieshe (“Neishe”) sued the Concrete School District (“District”) under 42 U.S.C. ��1983 for denying her due process by excluding her from a high school graduation ceremony based on a failing grade which was later changed to a passing grade. The superior court sustained a jury verdict in favor of Neishe. The District appealed, and Neishe cross-appealed arguing that the superior court erred in not sanctioning the District for violating discovery rules by failing to produce a computer disk. Read More

UBS Securities to Pay $2.1 Million in Penalties and Fines for Failure to Preserve Email

On July 13, 2005 the Securities and Exchange Commission (“Commission”) issued an Order in connection with the alleged failure of UBS Securities LLC (“UBS”) to preserve email. The Commission accepted an Offer of Settlement and UBS consented to entry of the Order without admitting or denying any findings of wrongdoing. Read More

Use of Employer-Issued Laptop Computer by Criminal Defendant for Attorney-Client Communications Does Not Waive Privilege

People v. Jiang, 33 Cal.Rptr.3d 184 (Cal. Ct. App. 2005)

Weibin Jiang (“Jiang”), a native of China with limited English language skills, was convicted and sentenced to state prison for 19 years and 4 months in connection with sexual offenses against A., an acquaintance. The trial court improperly denied Jiang’s motion to suppress his statement to police (Miranda warnings were not adequately translated and conveyed), and his conviction was reversed. In addition, the trial court erred in finding that materials prepared by Jiang for Jiang’s attorneys and stored on his employer-issued laptop computer were not subject to the attorney-client privilege. Read More

Magistrate Resolution to Limit Electronic Discovery Costs

J.C. Associates v. Fidelity & Guaranty Ins. Co., 2005 WL 1570140 (D.D.C. July 1, 2005)

Plaintiff alleged that defendant breached the terms of an insurance policy by refusing coverage in connection with plaintiff’s use of a pesticide on a property managed by plaintiff. Defendant responded that the “absolute pollution exclusion” applies such that it need not provide coverage. Discovery disputes developed, including a dispute over how defendant must search and produce other claims files in response to a request seeking information related to interpretation of the exclusion. Read More

Instant Messages: instant panic

The Monday, June 27, 2005 issue of The National Law Journal reports instant messaging (IM) carries its own set of legal implications for in-house law departments. Although many people think of IM as a fleeting conversation, similar to a telephone call, it’s legally considered a document, and is subject to the same retention policies that cover other business records. Click here for the full text of the article [subscription required.]

House Bill Proposes Five Year Minimum Sentence for Document Destruction

The Secure Access to Justice Act (H.R. 1751) was introduced by Rep. Louie Gohmert (Republican from Texas) on April 21, 2005. It was referred to the House Committee on the Judiciary followed by the Subcommittee on Crime, Terrorism, and Homeland Security where hearings were held as recently as June 30. It proposes amending Title 18 of the United States Code to protect judges, prosecutors, witnesses, victims, and their family members, and for other purposes. Read More

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