Archive: February 2006

1
Court Grants Preliminary Injunction Requiring Plaintiff to Return Laptop, Computer Files and Email to Former Employer After Forensic Firm Removes Plaintiff’s Privileged Documents at Her Expense
2
Magistrate Denies Stay of Order Compelling Forensic Review of Non-Party’s Computer Systems
3
Judge Lectures Counsel on Request to Make Documents ‘Disappear’
4
Email Exchanges Between Counsel Did Not Satisfy “Meet and Confer” Requirement in Case Management Order
5
Magistrate Expresses Concern Regarding Production of CDs Containing Scanned Documents, But Denies Motion to Compel as Untimely
6
Federal Court Enjoins Attorney General from Enforcing Against Adult Entertainment Industry Producers Certain Recordkeeping Requirements Related to Live Internet Chat Rooms and Third Party Websites
7
Court Declines In Camera Review and Orders Defendants to Revise Privilege Log Entries so that Court and Plaintiff Could “Test the Merits” within the Four Corners of the Privilege Log Itself
8
FTC Streamlines Merger Review Process for Hart-Scott-Rodino Filings
9
After Bench Trial, Court Concludes That Rambus’ Adoption and Implementation of Document Retention Policy Was a “Permissible Business Decision” and “Shred Days” Did Not Constitute Unlawful Spoliation
10
Magistrate Awards Attorneys’ Fees and Threatens Adverse Inference Jury Instruction to Force Defendants’ Compliance with Outstanding Production Requests and Discovery Orders

Court Grants Preliminary Injunction Requiring Plaintiff to Return Laptop, Computer Files and Email to Former Employer After Forensic Firm Removes Plaintiff’s Privileged Documents at Her Expense

Henry v. IAC/Interactive Group, 2006 WL 354971 (W.D. Wash. Feb. 14, 2006)

In this employment discrimination/trade secrets case, defendants obtained a preliminary injunction that granted the following injunctive relief: Read More

Magistrate Denies Stay of Order Compelling Forensic Review of Non-Party’s Computer Systems

Electrolux Home Products, Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006)

In this case, third parties that had been subpoenaed by the defendant (‘respondents”) moved to stay enforcement of the magistrate judge’s Decision and Order Enforcing Subpoenas (referred to as the “Confirmation Decision”), and petitioned for a Certificate of Interlocutory Appeal. The Chief Magistrate Judge wrote the opinion. Read More

Judge Lectures Counsel on Request to Make Documents ‘Disappear’

From the 2/14 issue of the New York Law Journal: “A federal judge in Manhattan has blasted a pair of private equity executives, both of whom are also lawyers, for asking him to make allegations against them “disappear” after the settlement of a suit that accused them of “fundamentally dishonest behavior.””

This story is also linked to at discoveryresources.org.

Email Exchanges Between Counsel Did Not Satisfy “Meet and Confer” Requirement in Case Management Order

Liebel-Flarsheim Co. v. Medrad Inc., 2006 WL 335846 (S.D. Ohio Feb. 14, 2006)

In this patent infringement case, the court had issued a Case Management Order that set scheduling deadlines and required the parties to confer and cooperate on certain tasks necessary to the orderly conduct of the litigation. Discovery became very contentious, and the court issued an order to show cause requesting the parties to explain why the parties and/or their counsel should not be sanctioned for failing to comply with the Case Management Order. Although the court decided it could not hold either party in contempt, it advised that the parties’ exchange of emails and written correspondence did not satisfy the CMO’s meet and confer requirement: “The Court’s understanding of the phrase “meet and confer” is a conference in which opposing parties actually talk to one another.”

Magistrate Expresses Concern Regarding Production of CDs Containing Scanned Documents, But Denies Motion to Compel as Untimely

Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. Feb. 14, 2006)

In this wrongful termination case, defendants produced three CDs containing a total of 7,253 documents which, according to plaintiff, were not “kept in any perceivable sequential order.” Plaintiff argued that the production did not comply with Rule 34(b), which requires a party to produce documents “as they are kept in the usual course of business or . . . organize and label them to correspond with the categories in the request.” Despite the fact that defendants had the documents scanned onto computer disc, they contended that they were produced as they were kept in the usual course of business. They argued that they produced all responsive documents and were under no obligation to specifically identify any such documents or to provide a directory of documents produced. Read More

Federal Court Enjoins Attorney General from Enforcing Against Adult Entertainment Industry Producers Certain Recordkeeping Requirements Related to Live Internet Chat Rooms and Third Party Websites

Free Speech Coalition v. Gonzales, 406 F.Supp.2d 1196 (D. Colo. 2005)

In this case, plaintiffs were all involved, in various capacities, in the adult entertainment industry. Plaintiffs sought a preliminary injunction to protect themselves from any enforcement action pending the litigation. Among other things, plaintiffs challenged new recordkeeping requirements under the Child Protection and Obscenity Enforcement Act and associated regulations. Ultimately, the court found that plaintiffs had demonstrated a substantial likelihood of success in demonstrating that the amended portions of the statute and regulations created an undue burden as they related to chat rooms and to websites not controlled by the producer. The court therefore enjoined the Attorney General, pending the outcome of these proceedings or further order, from enforcing 28 C.F.R. �� 75.2(a)(1)(i) against any of the plaintiffs in their operation of an Internet chat room and from enforcing 28 C.F.R. �� 75.2(a)(1)(ii) against any of the plaintiffs or members of FSC with regards to a website that is not controlled by that plaintiff or member of the Free Speech Coalition. Read More

Court Declines In Camera Review and Orders Defendants to Revise Privilege Log Entries so that Court and Plaintiff Could “Test the Merits” within the Four Corners of the Privilege Log Itself

United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 233 F.R.D. 483 (N.D. Miss. 2006)

In this decision, the court discussed the plaintiff’s motion for in camera review of documents inadvertently produced by the defendants, the general requirements of privilege logs, the elements of various privileges and protections, and the factors to be considered in determining whether inadvertent production of privileged material effects a waiver. Read More

FTC Streamlines Merger Review Process for Hart-Scott-Rodino Filings

The Federal Trade Commission (“FTC”) issued an announcement today detailing reforms to the merger review process designed to reduce burdens associated with second requests for documents and data. Such burdens have increased substantially since the Hart-Scott-Rodino Act (“HSR Act”) became operational in 1978 due to an increased reliance by agencies upon direct market analyses and advances in technology resulting in higher production volume. Parties and agencies often spend millions of dollars, and associated investigations can take six to nine months. Last fiscal year alone, the FTC received nine productions exceeding one million pages. New guidelines and procedures will take effect for all HSR Act filings submitted on or after February 17, 2006. Read More

After Bench Trial, Court Concludes That Rambus’ Adoption and Implementation of Document Retention Policy Was a “Permissible Business Decision” and “Shred Days” Did Not Constitute Unlawful Spoliation

Hynix Semiconductor Inc. v. Rambus, Inc., 591 F. Supp. 2d 1038 (N.D. Cal. 2006)

In this opinion, the court issued its findings of fact and conclusions of law on Hynix’s unclean hands defense to Rambus’ patent infringement claims. The essential issues of the trial were: (1) whether Rambus adopted a document retention plan in order to destroy documents in advance of a planned litigation campaign against DRAM manufacturers, and (2) whether in light of any such conduct, the court should dismiss Rambus’ patent claims against Hynix as a sanction for unclean hands. Read More

Magistrate Awards Attorneys’ Fees and Threatens Adverse Inference Jury Instruction to Force Defendants’ Compliance with Outstanding Production Requests and Discovery Orders

McDowell v. Gov’t of Dist. of Columbia, 233 F.R.D. 192 (D.D.C. 2006)

As a result of the difficulties faced by plaintiff in trying to obtain discovery in this case, plaintiff sought an order granting summary judgment against the District as to the “practice of allowing in the field strip searches or searches that involve viewing or touching inside the clothes searches.” Plaintiff also sought costs and attorneys’ fees incurred as a result of defendants’ failure to produce the requested discovery materials, which included a spreadsheet and certain arrest forms referred to as “PD 163s.” Read More

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