Archive: August 2005

1
Court Affirms Adverse Inference Sanction and Inadmissibility of Spoliation-related Prejudicial Evidence
2
2005 Socha-Gelbmann Electronic Discovery Survey
3
Beverly Enterprises Required to Post $20 Million Bond for Failure to Produce Documents
4
Automatic Purging of 21-day-old Email Risky But Defensible; Failure to Preserve Following Notice of Potential Litigation Results in Sanctions
5
Motion to Order Third Party Production of Email Denied Absent Meet and Confer
6
The Billion-Dollar Data Storage Error
7
Rules & Procedures: Extreme Makeover

Court Affirms Adverse Inference Sanction and Inadmissibility of Spoliation-related Prejudicial Evidence

Foust, et al. v. McFarland, et al., 698 N.W. 2d 24 (Minn. Ct. App. 2005)

On May 15, 1998, Jeffrey L. Foust (“Foust”) suffered brain and other injuries when his vehicle was struck by a truck driven by John R. McFarland (“McFarland”). The truck had failed to yield at an intersection where traffic signals had been disabled by a storm. A jury awarded Plaintiffs $11,310,464, despite a finding that Foust had intentionally destroyed electronic evidence. Read More

2005 Socha-Gelbmann Electronic Discovery Survey

The 2005 Socha-Gelbmann Electronic Discovery Survey Report has been released. The 2005 Survey examines the state of electronic discovery in 2004, through direct interviews and an online surveys of 69 consumers and providers of electronic discovery services, as well as website data from more than 200 organizations in the electronic discovery niche. It also compares this year’s results with results from the preceding two years, and makes projections for 2005 through 2007. For more information about the survey, or to purchase, click here.

Beverly Enterprises Required to Post $20 Million Bond for Failure to Produce Documents

On August 9, the Arkansas Democrat Gazette reported that Beverly Enterprises was ordered by the Arkansas Supreme Court to comply with Judge Phillips’ ruling and post a $20 million bond for failure to produce documents. Judge Phillips reportedly ordered the bond after “becoming frustrated in obtaining documents in a nursing home care case.” He had considered incarceration of Beverly executives in June, following defendants’ failure to produce documents including email and other electronic data.

The story can be found here.

Automatic Purging of 21-day-old Email Risky But Defensible; Failure to Preserve Following Notice of Potential Litigation Results in Sanctions

Broccoli, et al. v. Echostar Communications Corp., et al., 229 F.R.D. 506 (D.Md. 2005)

Dino Broccoli (“Broccoli”) sued Echostar Communications Corp. and Dish Network Corp. (collectively referred to as “Echostar”) and Stacie Andersen (“Andersen”) in connection with employment discrimination. He claims that Andersen, a human resources manager at Echostar, created a hostile work environment via sexual harassment, caused termination of his employment because he rebuffed her advances, and subsequently provided false and defamatory employment references. Broccoli prevailed on claims of breach of contract and violation of the Maryland Wage Payment and Collection Act, but not on claims of sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964 nor tortious interference with prospective economic advantage. Read More

Motion to Order Third Party Production of Email Denied Absent Meet and Confer

Bullis v. Nichols, 2005 WL 1838634 (W.D.Wash. Aug. 1, 2005)

Alana K. Bullis (“Bullis”) filed a claim which apparently alleges that City of Dupont (“City”) public officials are willing to “chill” her speech via an email campaign. In connection with this claim, Bullis sought email from the City via a subpoena duces tecum, which was issued on June 28, 2005. Read More

Rules & Procedures: Extreme Makeover

Law Technology News, EDD Showcase, August 2005
By Helen Bergman Moure

On June 16, 2005, discovery practice took a huge step forward when the Standing Committee on Rules of Practice and Procedure approved a set of proposed amendments relating to electronic discovery. The proposed rules and their accompanying “Notes” now face three remaining hurdles: Judicial Conference of Senior Circuit Judges approval; Supreme Court approval; and Congressional review.

Assuming they are not delayed, amended, voided, or deferred during these remaining steps, the amendments will become effective on December 1, 2006. Click here to read the entire article.

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