Archive: April 2006

1
Crime-Fraud Exception to Attorney-Client Privilege Invoked to Allow Testimony and Production of Notes by Attorney, Where Executive’s Deletion of Email Sought by Grand Jury Could Constitute Obstruction of Justice
2
Defendant Ordered to Allow Informal Interview of Employee Familiar with Defendant’s Efforts to Locate Missing Email Attachment
3
State Appellate Court Upholds $75,000 Sanctions Award Based on Party’s Failure to Properly Preserve and Timely Produce Expert’s Underlying Computer Data
4
Court Denies Former Detective’s Request to Inspect Orlando Police Department’s Computer Hard Drives
5
Court Warns Plaintiff that Further Noncompliance with Discovery Orders Could Result in Terminating Sanctions, and Orders Plaintiff to Produce Emails with Attachments Physically Attached
6
Plaintiff Ordered to Allow Inspection of Computer Hard Drive and Allow Informal Interviews Regarding Computer’s Temporary Misplacement
7
Ret. SF Superior Court Judge Praises E-Discovery Case Database
8
Preventing E-Glitches
9
Ordering Defendants to Re-Do Confidentiality Designations, Court Reserved Judgment on Whether Defendants Should Be Sanctioned for “Meat Ax” Approach
10
Lower Court Correctly Found that GM Disobeyed Discovery Orders, but Order Imposing $700,000 in Sanctions and Striking Affirmative Defenses Violated Due Process

Crime-Fraud Exception to Attorney-Client Privilege Invoked to Allow Testimony and Production of Notes by Attorney, Where Executive’s Deletion of Email Sought by Grand Jury Could Constitute Obstruction of Justice

In re Grand Jury Investigation, 445 F.3d 266 (3rd Cir. 2006)

This opinion relates to an ongoing grand jury investigation of suspected federal criminal activity; because of the secrecy of the proceeding, the court’s opinion lacks specific details.

The grand jury began investigating the financial arrangements and business dealings of an individual (the “Primary Target”), whose business dealings were carried out by a particular organization (the “Organization”). The grand jury investigation led to inquiry of Jane Doe, the Executive Director of the Organization, who had, and has, intimate knowledge of and access to the papers and other material of both the Primary Target and the Organization. “It appears that Jane Doe is also a target of the grand jury investigation. If she was not at the outset, she certainly has become a target in light of the events with which we are concerned. The Organization, through its counsel (“Attorney”), has entered into a joint-defense agreement with Jane Doe and her counsel in response to the investigation.” Read More

Defendant Ordered to Allow Informal Interview of Employee Familiar with Defendant’s Efforts to Locate Missing Email Attachment

Fischer v. UPS, 2006 WL 1046973 (E.D. Mich. Apr. 19, 2006)

In this wrongful termination case, plaintiff had requested the production of certain salary information. Defendant had produced a responsive email that referenced an attachment, but the attachment was not produced. Defendant represented that it was unable to locate the attachment. Plaintiff was unwilling to simply accept defendant’s claim that the attachment could not be located, and asked to depose someone familiar with defendant’s retrieval efforts. Ruling on plaintiff’s discovery motion, the magistrate struck a compromise, and ordered defendant’s counsel to arrange an informal telephone conference with an employee of defendant who was familiar with defendant’s efforts to locate the attachment. Read More

State Appellate Court Upholds $75,000 Sanctions Award Based on Party’s Failure to Properly Preserve and Timely Produce Expert’s Underlying Computer Data

Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37 (Tex. App. 2006)

In this oil and gas drainage case, Roberto Vela, and the other royalty interest owners and intervenors (collectively, the “Royalty Owners”), appealed from the trial court’s take-nothing judgment. On cross-appeal, Wagner & Brown challenged the trial court’s pre-trial order assessing $75,000 in sanctions against it. The appellate court affirmed the order imposing sanctions and the judgment of the trial court. Read More

Court Denies Former Detective’s Request to Inspect Orlando Police Department’s Computer Hard Drives

Floeter v. City of Orlando, 2006 WL 1000306 (M.D. Fla. Apr. 14, 2006)

In this case, plaintiff alleged that he was the victim of sexual harassment, a hostile work environment, and retaliation while working as a detective with the Orlando Police Department (OPD). He served a request for production of documents and a request to inspect computer hard drives at OPD, which he styled as a request for entry upon land. When OPD objected to some of the requests, plaintiff filed a motion to compel. Read More

Court Warns Plaintiff that Further Noncompliance with Discovery Orders Could Result in Terminating Sanctions, and Orders Plaintiff to Produce Emails with Attachments Physically Attached

Miller v. IBM, 2006 WL 995160 (N.D. Cal. Apr. 14, 2006)

In this case involving breach of contract and fraud claims, IBM moved to preclude plaintiff Ralph Miller from offering evidence on any of the matters for which he had failed to comply with the court’s previous discovery orders. The court granted in part and denied in part IBM’s motion for sanctions, and warned that further noncompliance could result in terminating sanctions. Several of the matters on which the court granted relief related to electronic discovery. Read More

Plaintiff Ordered to Allow Inspection of Computer Hard Drive and Allow Informal Interviews Regarding Computer’s Temporary Misplacement

Performance Chevrolet, Inc. v. Market Scan Info. Sys., Inc., 2006 WL 980727 (D. Idaho Apr. 11, 2006)

In this case, plaintiff sued the defendant for breach of contract and fraud, claiming that the software it had leased never worked as promised. After part of the case was resolved on summary judgment, the main issue for trial, scheduled to commence the following week, was whether the software worked as promised. One of defendant’s defenses was that plaintiff was not using the software properly; to pursue this defense, it needed to inspect plaintiff’s computer system to see how the software was working. Read More

Ret. SF Superior Court Judge Praises E-Discovery Case Database

In an email to Martha Dawson last week, Hon. Richard E. Best provided his compliments and thanks to Preston Gates for publishing and maintaining our electronic discovery case database.

“What makes [the database] even better is the accuracy and precision in which cases are summarized. The site is not only a tribute to Preston Gates but a valuable contribution to lawyers throughout the nation who are just getting up to par on this topic. It is in my opinion an example of the best attributes of our profession where lawyers help lawyers to improve the competence of the profession as a whole.”

Judge Best is a retired 29-year San Francisco Superior Court judge who is most commonly associated with law and motion hearings involving civil discovery. Today, he is a discovery consultant and private judge, as well as a commentator and frequent speaker on electronic discovery issues. His website, California Civil Discovery Law, can be found here.

On behalf of everyone at Preston Gates: thank you!

Ordering Defendants to Re-Do Confidentiality Designations, Court Reserved Judgment on Whether Defendants Should Be Sanctioned for “Meat Ax” Approach

Flynn v. Oakland County, 2006 WL 950282 (E.D. Mich. Apr. 12, 2006)

In this civil rights case, plaintiffs moved to compel the production of “declassified” discovery. The parties had stipulated to a protective order regarding discovery, issued by the court on January 6, 2006, mandating that certain documents produced during discovery would be kept confidential. The protective order defined “confidential material,” and set out a procedure through which a party could challenge a document’s “confidential” designation. The protective order stated that confidential material could be submitted to the court, but that it must be filed under seal. It also delineated a process to protect confidential material during depositions and file handling. Read More

Lower Court Correctly Found that GM Disobeyed Discovery Orders, but Order Imposing $700,000 in Sanctions and Striking Affirmative Defenses Violated Due Process

Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 F.3d 1137 (11th Cir. 2006) GM appealed the decision of the District Court for the Northern District of Alabama which found that GM had violated discovery orders and imposed $700,000 in monetary sanctions and struck certain of GM’s affirmative defenses. A summary of the lower court’s decision and a copy of its order are available here. Read More

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