Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

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."

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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.

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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.

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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.

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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.

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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!

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

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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.

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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. The proposed amendments were transmitted to the Supreme Court last September, after the Judicial Conference unanimously approved them.

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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 60,000 records on its "pre-sale customer inquiry database" that could be responsive to the request. In its motion to compel, plaintiff requested that defendant "back up" the database containing the requested documents and produce the database to plaintiff, with plaintiff to bear the burden of extracting any data so as to eliminate any undue burden on defendant.

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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, 2006, "all e-data derived from backup tapes and maintained on computer hard drives under BP's control" that were responsive to the plaintiffs' steering committee's request, as identified in the court's February 6, 2006 order and in the manner specified in the order. The appellate court had previously denied BP's request for emergency relief requesting a stay of the February 6, 2006 order.

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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 jury trial on the remaining claims resulted in a defense verdict, plaintiff appealed. In conjunction with arguing that the trial court erred in dismissing its claim for computer theft, plaintiff argued that the trial court erroneously exercised its discretion by denying its motion to compel additional discovery on the issue.

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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 that the individual defendants had violated the terms of their employment contracts, plaintiff terminated them and filed an 11 count verified complaint seeking injunctive and other relief. Plaintiff obtained a TRO enjoining the defendants from violating the terms of their employment agreements, and also sought a preliminary injunction. Following a hearing during which the court took evidence regarding the alleged wrongful acts by defendants, the court granted a preliminary injunction enjoining defendants, among other things:

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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 arrest and detention of plaintiffs. With little discussion of particulars (including what constituted "Exhibit K" referenced below), the court ruled as follows:

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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 memorandum, available here, provides interesting background on the proposed Evidence Rule 502. The Advisory Committee has not yet taken any action on the proposed rule.

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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 York City, and will consist of short statements by invited presenters, with time left for a discussion among the presenters and questions from the Committee. Interested members of the public are invited to attend the hearing and are free to attend the Committee meeting that will follow.

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