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Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Monthly Archives: April 2006

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

Posted in CASE SUMMARIES

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”),… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in NEWS & UPDATES

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… Continue Reading

Preventing E-Glitches

Posted in NEWS & UPDATES

A story by Jason Krause focusing on the effective use of search terms in electronic discovery on ABAJournal.com.

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

Posted in CASE SUMMARIES

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…. Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

United States Supreme Court Approves Electronic Discovery Amendments to FRCP

Posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES

On Wednesday, April 12, 2006, the United States Supreme Court approved, without comment or dissent, the entire package of proposed amendments to the Federal Rules of Civil Procedure concerning the discovery of “electronically stored information.” The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35…. Continue Reading

Magistrate Orders Production Of Proprietary Database In A “Reasonably Usable Form”

Posted in CASE SUMMARIES

Static Control Components, Inc. v. Lexmark Int’l, Inc., 2006 WL 897218 (E.D. Ky. Apr. 5, 2006) In this patent and copyright infringement case, plaintiff requested the production of customer communications regarding defendant’s purported “Prebate agreement” for a toner cartridge that was in issue. According to plaintiff, defendant had claimed that there were as many as… Continue Reading

Texas Appellate Court Denies Petition for Writ of Mandamus Seeking to Vacate Order Requiring Defendant to Produce “All E-Data Derived from Backup Tapes and Maintained on Computer Hard Drives”

Posted in CASE SUMMARIES

In re BP Prods., N. Am., Inc., 2006 WL 648816 (Tex. Ct. App. Mar. 13, 2006) In this opinion, a Texas appellate court denied the petition for a writ of mandamus filed by BP Products North America, Inc., which complained that the trial judge abused her discretion by compelling BP to produce, by March 17,… Continue Reading

Trial Court Did Not Err In Denying Plaintiff’s Request For Second Search Of Mirror Images As Unreasonable “Fishing Expedition”

Posted in CASE SUMMARIES

Liturgical Publ’ns, Inc. v. Karides, 2006 WL 931892 (Wis. Ct. App. Apr. 12, 2006) (Unpublished) In this case, plaintiff asserted claims for employee disloyalty, misappropriation of trade secrets and computer theft against two former employees and their competing company. The trial court dismissed several claims on summary judgment, including the computer theft claim. After a… Continue Reading

Court Orders Preservation of Evidence, Enjoining Former Employees From Wiping Clean Any Computer Hard Drive Containing Relevant Evidence

Posted in CASE SUMMARIES

ACS Consultant Co., Inc. v. Williams, 2006 WL 897559 (E.D. Mich. Apr. 6, 2006) In this case, plaintiff was in the business of providing information technology and management consultant services, principally to health care providers. Defendants were former employees and a company in which one of the former employees was a principal. After discovering evidence… Continue Reading

Magistrate Orders Production of Metadata and Electronic Documents

Posted in CASE SUMMARIES

Rodriguez v. City of Fresno, 2006 WL 903675 (E.D. Cal. Apr. 7, 2006) In this civil rights action stemming from plaintiffs’ arrest, the court granted in part and denied in part plaintiffs’ motion to compel production of documents and responses to interrogatories. Among other things, plaintiffs sought the production of electronic documents relating to the… Continue Reading

Adverse Inference Not Warranted By Party’s Re-Installation Of Operating System On Computer Servers Subject to Preservation Order

Posted in CASE SUMMARIES

Creative Sci. Sys., Inc. v. Forex Capital Mkts., LLC, 2006 WL 870973 (N.D. Cal. Apr. 4, 2006) (Unpublished) In this case involving copyright infringement and related claims, plaintiff moved for sanctions, claiming that defendant had not complied with the court’s Preservation Order. Plaintiff sought monetary sanctions, an adverse inference instruction, and an order barring defendant… Continue Reading

Memorandum to Advisory Committee Members Provides Valuable Background on Proposed ER 502, and Responds to Comments Already Received

Posted in FEDERAL RULES AMENDMENTS

In advance of their April 24-25, 2006 meeting, members of the Advisory Committee on the Federal Rules of Evidence received a memorandum prepared by the Reporter (Daniel J. Capra, Reed Professor of Law, Fordham Law School) and Professor Kenneth S. Broun (University of North Carolina School of Law), a consultant to the Advisory Committee. The… Continue Reading

Advisory Committee on Federal Rules of Evidence to Conduct “Mini-Conference” on Proposed Evidence Rule 502

Posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES

On April 24, 2006, from 9 a.m. until 1 p.m., the Advisory Committee on the Federal Rules of Evidence will conduct a hearing (or “mini-conference”) on a proposed rule that would govern waiver of attorney-client privilege and work product protection. The hearing will take place at the Fordham University School of Law Amphitheater in New… Continue Reading