Archive: May 2006

1
Magistrate Articulates Sampling, Conversion and Search Protocols for Hard Copy Insurance Claim Files
2
California Appellate Court Sides with Internet Publishers and Directs that Subpoenas Issued by Apple Computer, Inc. be Quashed
3
Late Production of Electronic Documents Amounts to “Gross Negligence,” and Warrants Monetary Sanctions Against Defendants and Counsel
4
Former Counsel for Morgan Stanley Successfully Petitions for Writ Directing Trial Court to Strike Revocation of Pro Hac Vice Status
5
Magistrate Denies Request for Production of Native PST Files But Orders Defendants to Produce Electronic Material in a Readable, Usable Format
6
Magistrate Allows Inspection of Plaintiff’s Computer Where Many Financial Records Were Missing from Paper Production
7
Ex-Employee Waived Attorney-Client Privilege as to Deleted Emails Later Recovered from Employer-Provided Laptops
8
District Court Affirms Magistrate’s Decision Finding No Privilege Waiver as to Personal Files Stored on (but Later Deleted from) Employer-Provided Laptop
9
Citing Sedona Principles, State Court Allows Forensic Imaging of Former Employee’s Home Computer
10
Court Declines to Shift Costs of Production of E-mail from Backup Tapes, Citing Defendants’ Non-Compliant and Deceptive Discovery Tactics and Disregard of Court Orders

Magistrate Articulates Sampling, Conversion and Search Protocols for Hard Copy Insurance Claim Files

J.C. Associates v. Fidelity & Guar. Ins. Co., 2006 WL 1445173 (D.D.C. May 25, 2006)

In this insurance coverage dispute, plaintiff sought discovery of the 1.4 million active and inactive claim and litigation files in defendant’s possession. Although the defendant did not physically search the 1.4 million files, it conducted an electronic search of the files, using internal codes that identify the category of the claim. This search identified 454 claims, including the six claims at issue in the case. Read More

California Appellate Court Sides with Internet Publishers and Directs that Subpoenas Issued by Apple Computer, Inc. be Quashed

O’Grady v. Superior Court, 2006 WL 1452685 (Cal. Ct. App. May 26, 2006)

Apple Computer, Inc. (Apple) brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. Read More

Late Production of Electronic Documents Amounts to “Gross Negligence,” and Warrants Monetary Sanctions Against Defendants and Counsel

Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)

In this opinion, the court ruled on plaintiff’s motion for sanctions against certain defendants and their counsel Mound Cotton Wollan & Greengrass (“Mound Cotton”) for destruction and late production of evidence. Plaintiff requested: (1) an adverse inference instruction; (2) that defendants be precluded from making a summary judgment motion; (3) that defendants be precluded from raising certain claims and defenses, submitting any dispositive motions or asserting any defenses that cite to, or rely on, information contained in the recently retrieved documents, and that they be deemed to have admitted certain facts; (4) monetary sanctions; and (5) any other sanctions deemed appropriate. The court granted monetary sanctions only. Read More

Former Counsel for Morgan Stanley Successfully Petitions for Writ Directing Trial Court to Strike Revocation of Pro Hac Vice Status

Clare v. Coleman (Parent) Holdings, Inc., 2006 WL 1409137 (Fla. Ct. App. May 24, 2006)

The petitioner in this case, Thomas A. Clare, is a partner in the law firm of Kirkland & Ellis, LLP, who was admitted to appear pro hac vice on behalf of Morgan Stanley & Company in the suit brought by Coleman Holdings, Inc. in Florida state court. In that capacity, the petitioner served as the primary intermediary between Morgan Stanley and Coleman on discovery matters. The petitioner’s pro hac vice admission was revoked in the trial court’s March 23, 2005 order granting the entry of default judgment against Morgan Stanley (a copy of which is available here). On the same day the court entered the order, the court also heard Kirkland and Ellis’s motion to withdraw from its representation of Morgan Stanley. During that hearing, the court commented that there was “nothing in this record that indicates that any misconduct on the part of Kirkland and Ellis was anything other than as a consequence of their serving as messengers. . . . ” Read More

Magistrate Denies Request for Production of Native PST Files But Orders Defendants to Produce Electronic Material in a Readable, Usable Format

CP Solutions PTE, Ltd. v. General Elec. Co., 2006 WL 1272615 (D. Conn. Feb. 6, 2006)

In this recently published case, plaintiff found fault with defendants’ production of 301,539 pages of documents in response to its 131 requests for production. Plaintiff moved to compel defendants (1) to supplement their production so as to identify every document which is responsive to each of plaintiff’s requests for production; (2) to organize and label each responsive document to correspond to the categories of plaintiff’s requests; and (3) to produce the “native” or “original” electronic documents identified as “Personal Folder Files” (“PST files”) which, plaintiff alleged, underlie the hundreds of thousands of pages of emails and accompanying attachments comprising defendants’ production “as they are kept in the normal course of business.” Plaintiff argued that, due to the volume and disorganized state of defendants’ production, defendants should be required to organize and label the documents produced to correspond to plaintiff’s requests for production. Plaintiff complained that thousands of emails were separated from their attachments, thousands of pages of “gibberish” were produced, and documents were commingled and, thus, were not produced as kept in the ordinary course of business. Plaintiff further claimed that the PST files, as they are kept in the ordinary course of business, would drastically reduce the time needed to prepare an index of defendants’ documents. Read More

Magistrate Allows Inspection of Plaintiff’s Computer Where Many Financial Records Were Missing from Paper Production

Ukiah Auto. Invs. v. Mitsubishi Motors of N. Am., Inc., 2006 WL 1348562 (N.D. Cal. May 17, 2006)

In this brief order, the magistrate judge ruled on the parties’ discovery disputes, including Mitsubishi’s request for an order permitting it to inspect the computer used to record Ukiah’s business transactions. Although Ukiah claimed that it had produced all relevant documents from the computer in paper form, Mitsubishi argued that this was insufficient because many financial statements were missing. Ukiah further claimed that the computer was no longer operational. Ukiah requested that any inspection be conducted by a neutral at Mitsubishi’s expense. Read More

District Court Affirms Magistrate’s Decision Finding No Privilege Waiver as to Personal Files Stored on (but Later Deleted from) Employer-Provided Laptop

Curto v. Med. World Communications, Inc., 2006 WL 1318387 (E.D.N.Y. May 15, 2006)

In this opinion, the district court denied defendants’ objections to a magistrate’s discovery order which concluded that plaintiff had not waived any attorney-client privilege or work product protection as to documents originally created on (but subsequently deleted from) two employer-provided laptops. Read More

Citing Sedona Principles, State Court Allows Forensic Imaging of Former Employee’s Home Computer

Quotient, Inc. v. Toon, 2005 WL 4006493 (Md. Cir. Ct. Dec. 23, 2005)

In this case, Quotient alleged that while still a Quotient employee, Mr. Toon intentionally and surreptitiously provided a former Quotient employee access to Quotient’s computer system so that the former employee could obtain Quotient’s trade secrets and confidential information and use such information to compete with Quotient. Quotient sought an order to permit Quotient’s retained computer expert access to “Toon’s personal computer system, hard drives and back-up hard drives, disks, C.D.’s and/or other data, back up devices or vehicles in order to capture an image of these items.” Quotient represented it would pay the full and complete cost of the copying process and would abide by any restriction on access and use imposed by the court. Read More

Court Declines to Shift Costs of Production of E-mail from Backup Tapes, Citing Defendants’ Non-Compliant and Deceptive Discovery Tactics and Disregard of Court Orders

Wachtel v. Guardian Life Ins. Co., 2006 WL 1286189 (D.N.J. May 8, 2006) (Unpublished)

In this opinion, the court addressed plaintiff’s motion to compel production of certain materials being withheld by defendants on a claim of privilege. It also denied defendants’ appeals of earlier discovery orders issued by the magistrate which imposed an adverse inference sanction for spoliation of evidence and required defendants to produce from backup tapes the e-mail of some 59 individuals. Read More

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