Archive: September 2005

1
Access to Intranet Denied when Documents Provided in Searchable Form
2
Locate Smoking Guns in Cryptic Messaging
3
Court Quashes Order Compelling Production of Computers Absent Evidence of Spoliation
4
Florida Supreme Court Justices Find Legal Duty to Maintain or Preserve Property Necessary for Spoliation
5
Magistrate Recommends Granting of Fees and Costs from Counsel for Vexatious Pursuit of Matter Despite Damning Email
6
Judicial Conference Approves Proposed Amendments to Federal Rules of Civil Procedure
7
Court Orders Production of Home Office Backup Tape Created in Connection with CFTC Receivership
8
Court Denies Request for Adverse Inference where Failure to Preserve Hard Drive Does Not Suggest Fraud or Fabrication
9
Failure to Produce Recordings Stored on Computer Results in Exclusion
10
Court Imposes Sanctions and Allows Re-deposition of Witnesses Due to Belated Production of Email

Access to Intranet Denied when Documents Provided in Searchable Form

Fenster Family Patient Holdings, Inc. v. Siemens Medical Solutions USA, Inc., 2005 WL 2304190 (D.Del. Sept. 20, 2005)

Fenster Family Patient Holdings, Inc. and others (collectively “Fenster”) filed this lawsuit alleging infringement of various patents by Siemens Medical Solutions USA, Inc. and other Siemens entities (collectively “Siemens”). The patents were issued in connection with Digital Angiography and Digital Fluoroscopy (“DF”) technology. The Court addressed a number of motions in this opinion, including a renewed motion for access to Siemens’ Intranet. Read More

Locate Smoking Guns in Cryptic Messaging

An article by Conrad Jacoby in the September issue of Law Technology News: Collecting documents in response to internal investigations or civil litigation discovery requests has always been a challenge. The problem is not so much gathering the documents (though volume can be problematic), but rather identifying the data repository nooks and crannies where important information may be stored. Most difficult of all: The collecting party must develop logical and reproducible procedures for identifying relevant documents and separating them from the vast amount of other unrelated material. One particular challenge is sorting through e-mail messages and short messages sent from portable devices. Click here to read the entire article.

Court Quashes Order Compelling Production of Computers Absent Evidence of Spoliation

Menke v. Broward County Sch. Bd., 916 So. 2d 8 (Fla. Dist. Ct. App. 2005)

David Menke (“Menke”) is a high school teacher who was suspended for alleged misconduct. Allegations included claims that he had exchanged sexually-explicit emails with minor students and made derogatory comments about school personnel and operations with students. Menke requested a formal hearing, and in the proceedings the Broward County School Board (the “Board”) sought inspection of Menke’s home computers by its expert in the expert’s laboratory. Menke objected, but the administrative law judge granted the Board’s motion to compel production of the computers. Read More

Florida Supreme Court Justices Find Legal Duty to Maintain or Preserve Property Necessary for Spoliation

Martino, et al. v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005)

Ronna Martino (“Martino”) sued Wal-Mart Stores, Inc. (“Wal-Mart”) alleging that she suffered injury in March 1997 when the shopping cart she was using collapsed. Plaintiff claims that the injury occurred when a cashier, who was ringing up goods for purchase, asked Martino to lift 40 pound bags of salt so that price codes could be scanned. Martino allegedly placed a bag on top of the cart, which collapsed causing injury to her arm. Read More

Magistrate Recommends Granting of Fees and Costs from Counsel for Vexatious Pursuit of Matter Despite Damning Email

Rousseau v. Echosphere Corp., 2005 WL 2176839 (W.D. Pa. Aug. 30, 2005)

Charles A. Lamberton (“Lamberton”) represented Thomas R. Rousseau (“Rousseau”) in an action alleging retaliatory termination by Echosphere Corporation (“Echosphere”). The termination was allegedly due to Rousseau’s filing of a workers’ compensation claim and his having requested a workplace accommodation. Plaintiff claimed that Echosphere’s proffered reason for the termination, that Rousseau had knowingly falsified company documents by providing two different social security numbers, was merely a pretext for unlawful termination. Read More

Judicial Conference Approves Proposed Amendments to Federal Rules of Civil Procedure

The Judicial Conference today approved the package of proposed rule amendments addressing the discovery of electronically stored information. It was approved unanimously, without question or objection, and will now be considered by the Supreme Court. If promulgated by May 1, it will become effective on December 1, 2006 absent intervention by Congress.

The September 2005 report from the Committee on Rules of Practice and Procedure to the Judicial Conference, which includes a copy of the amendments, can be found here.

Court Orders Production of Home Office Backup Tape Created in Connection with CFTC Receivership

Commodity Futures Trading Commission v. Equity Financial Group, LLC, et al., 2005 WL 2205789 (D.N.J. Sept. 9, 2005)

In April 2004, the U.S. Commodity Futures Trading Commission (“CFTC”) filed an enforcement action against Equity Financial Group, LLC (“Equity”) and others alleging fraud in connection with the solicitation of commodity pool participation interests in Shasta Capital Associates, LLC (“Shasta”). Tech Traders, Inc. (“Tech Traders”), which traded Shasta’s funds, and Robert W. Shimer, counsel for Equity and Shasta, were charged with regulatory violations. Tech Traders allegedly traded Shasta funds in its own name and lost money for this hedge fund rather than making the “astonishing returns” claimed by Equity. Read More

Court Denies Request for Adverse Inference where Failure to Preserve Hard Drive Does Not Suggest Fraud or Fabrication

Liggett v. Rumsfeld, 2005 WL 2099782 (E.D.Va. Aug. 29, 2005)

William Liggett (“Liggett”), an information technology specialist working for the United States Department of Defense, Defense Logistics Agency (“DLA”) sued Defense Secretary Donald Rumsfeld (“Rumsfeld”) alleging discrimination based on race, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964. Read More

Failure to Produce Recordings Stored on Computer Results in Exclusion

Shank v. Kitsap County, et al., 2005 WL 2099793 (W.D.Wash. Aug. 30, 2005)

Charles Shank (“Shank”) sued Kitsap County, a Washington State Municipal Corporation, and several individuals (collectively “Kitsap”) in connection with alleged employment-related violations under 42 USC �� 1983. Claims included: failure to receive a pay raise, hostile work environment, and failure to receive a promotion. Read More

Court Imposes Sanctions and Allows Re-deposition of Witnesses Due to Belated Production of Email

Tracy v. Financial Insurance Management Corp., 2005 WL 2100261 (S.D.Ind. Aug. 22, 2005)

Justin Tracy (“Tracy”) filed a Motion for Sanctions under Rule 37 and Other Relief in a case involving allegations of Americans with Disabilities Act and Employee Retirement Income Security Act violations. Tracy claimed that Financial Insurance Management Corporation (“FIMC”) had interfered with the discovery process by producing email at the eleventh hour after the deposition of key witnesses had commenced. The motion, which also sought relief for other alleged discovery violations, was granted in part and denied in part. Read More

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