Archive: June 2006

1
Court’s In Camera Privilege Review Found Only 491 Documents Privileged, of 30,000 Claimed; Fifth Circuit Finds Review Process Inadequate and Orders Re-Examination of 2,000 Documents
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Court Requires Production of Electronic Documents in Native Format
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Washington Court Enters Ultimate Sanction of Default Against Defendants for Discovery Abuses, Reinstating $8,064,055 Jury Verdict
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10th Circuit Declines to Adopt a Rule of “Selective Waiver” which would Allow Production of Work Product and Privileged Documents to Investigators Without Waiving Further Protection
5
Special Master to Evaluate Authenticity of Electronic Evidence Which Plaintiff Claimed Was Fabricated
6
Court Declines to “Second Guess” Expert’s Advice on Litigation Hold
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Court Finds Subject Matter Waiver: Plaintiff Entitled to Retain Privileged Email and Inquire into All Related Communications
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When it Absolutely, Positively Does Not Merit an Adverse Inference Instruction, FedEx Defeats Motion in Limine
9
Insufficient Diligence in Planning and Executing Search for Responsive Documents Warrants Monetary Sanctions, but not Default Judgment
10
Court Directs Plaintiff to Provide a Table of Contents or Index for Imaged Documents Produced on CD

Court’s In Camera Privilege Review Found Only 491 Documents Privileged, of 30,000 Claimed; Fifth Circuit Finds Review Process Inadequate and Orders Re-Examination of 2,000 Documents

Vioxx Prods. Liab. Litig. Steering Comm. v. Merck & Co., Inc., 2006 WL 1726675 (5th Cir. May 26, 2006)

Merck Company, Inc. (“Merck”) sought interlocutory appeal and a writ of mandamus in response to the district court’s ruling on Merck’s attorney-client privilege claim as to certain documents sought in connection with Vioxx Products Liability multi-district litigation (“MDL”). Timely resolution of the privilege claim was deemed crucial to many of the thousands of cases included in the MDL. Although the Fifth Circuit found that it did not have appellate jurisdiction, it did order the re-examination of documents.

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Court Requires Production of Electronic Documents in Native Format

In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006)

In this ruling regarding various class certification discovery issues, the court ordered:

  • The Specialist Defendants shall produce all documents previously produced by them to the Securities and Exchange Commission (the "SEC") and the New York Stock Exchange (the "NYSE") in the course of their investigations of the Specialist Defendants’ actions underlying this litigation.
  • All hard copy documents shall be produced on single page tiff images, uploadable on both Opticon and Concordance.  All electronic documents shall be produced in their native format.  When producing electronic documents, the producing party shall also provide all metadata

Washington Court Enters Ultimate Sanction of Default Against Defendants for Discovery Abuses, Reinstating $8,064,055 Jury Verdict

Maga?a v. Hyundai Motor America, No. 00-2-00553-2 (Clark County, Wash. Super. Ct. Feb. 15, 2006) (Findings of Fact and Conclusions of Law Re:  Default Judgment)

At the first trial of this product liability case, the jury awarded plaintiff over $8 million in damages for injuries he sustained after he was ejected out of the hatchback of a 1996 Hyundai Accent in a 1997 accident.  Hyundai appealed liability but not damages, and the case was remanded for a second trial on the issue of liability.  Preparing for the second trial, plaintiff filed a motion to compel defendants to produce documents relating to other similar incidents.  The court granted the motion, and ordered Hyundai to produce “Police Reports, legal claims, consumer Complaints and Expert Reports or Depositions and Exhibits and photographs thereto with respect to all consumer complaints and lawsuits involving allegations of seatback failure on all Hyundai vehicles with single recliner mechanisms regardless of incident date and regardless of model year.”  Hyundai was ordered to produce all legal claims, consumer complaints and policy reports by November 21, 2005, and to produce all expert reports, photographs, depositions and exhibits thereto by December 1, 2005.

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10th Circuit Declines to Adopt a Rule of “Selective Waiver” which would Allow Production of Work Product and Privileged Documents to Investigators Without Waiving Further Protection

In re Qwest Communications Int’l, Inc., 2006 WL 1668246 (10th Cir. June 19, 2006)

In this mandamus action, Qwest Communications International, Inc. presented an issue of first impression in the 10th Circuit, namely, whether Qwest waived the attorney-client privilege and work-product doctrine, as to third-party civil litigants, by releasing privileged materials to federal agencies in the course of the agencies’ investigation of Qwest. Qwest urged the appellate court to adopt a rule of “selective waiver” or “limited waiver” which would allow production of attorney-client privileged and work-product documents to the United States Department of Justice and the Securities and Exchange Commission without waiver of further protection for those materials. The court held that the district court did not abuse its discretion in declining to apply selective waiver and denied Qwest’s petition for a writ of mandamus. Read More

Special Master to Evaluate Authenticity of Electronic Evidence Which Plaintiff Claimed Was Fabricated

Inventory Locator Serv. LLC v. Partsbase, Inc., 2006 WL 1646091 (W.D. Tenn. June 14, 2006)

In this case, plaintiff brought claims under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, alleging that defendant obtained unlawful access to plaintiff’s computerized database. Defendant counterclaimed, alleging similar conduct by plaintiff. Plaintiff moved to strike the counterclaim and for the appointment of a special master under Rule 53(b) of the Federal Rules of Civil Procedure to determine whether defendant fabricated evidence. Plaintiff offered to pay the initial costs associated with the appointment of a special master. Read More

Court Declines to “Second Guess” Expert’s Advice on Litigation Hold

Kemper Mortgage, Inc. v. Russell, 2006 WL 2319858 (S.D. Ohio Apr. 18, 2006)

Plaintiff submitted a letter request to the court regarding a litigation hold, and the court heard oral argument on the request by telephone with both parties participating. Plaintiff represented that its computer forensics expert had advised that a “litigation hold” be effected by making a mirror image of plaintiff’s corporate server, laptops, and a branch server, at a cost of roughly $4,000. Plaintiff sought the telephone conference “to discuss the Court’s wishes on the preservation of evidence through the litigation hold, and which party will bear the related costs.” Read More

Court Finds Subject Matter Waiver: Plaintiff Entitled to Retain Privileged Email and Inquire into All Related Communications

Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006)

In this patent case, Dot Hill Systems Corporation (“Dot Hill”) produced to Crossroads Systems, Inc. (“Crossroads”) an email drafted by Thomas Lavan (“Lavan”), Director of Intellectual Property for Chaparral Network Storage, Inc. (“Chaparral”), and sent to Chaparral’s outside patent counsel, Alan Davis. (During the litigation, Dot Hill acquired Chaparral, and Crossroads asserted patent infringement by Dot Hill based on Dot Hill’s original products and Chaparral’s products.) Dot Hill’s 30(b)(6) witness, Dana Kammersgard, was asked questions about the email during her deposition, but no objections were made based on attorney-client privilege. Read More

When it Absolutely, Positively Does Not Merit an Adverse Inference Instruction, FedEx Defeats Motion in Limine

Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006)

Plaintiff (“Durst”) had been employed as a part-time courier by FedEx. He contended that he was required to drive vehicles with “safety issues” that suffered regular breakdowns. One day, he was unable to insert the key into the ignition of his truck. FedEx sent a replacement vehicle, but instead of finishing his route, Durst returned to the station and refused to deliver remaining packages. He based this refusal on alleged unaddressed safety concerns and prior vehicle breakdowns. Durst received a termination letter two days later. Litigation ensued, FedEx unsuccessfully moved for summary judgment, and Durst filed a motion in limine seeking an adverse inference that FedEx destroyed or failed to maintain evidence that would have been favorable to Durst and unfavorable to FedEx. Such evidence included accident reports, towing records, Vehicle Inspection Reports (regularly filled out by FedEx couriers), vehicle repair histories, and email identifying repeated problems with vehicles. Read More

Insufficient Diligence in Planning and Executing Search for Responsive Documents Warrants Monetary Sanctions, but not Default Judgment

Cardenas v. Dorel Juvenile Group, Inc., 2006 WL 1537394 (D. Kan. June 1, 2006)

In this product liability action involving a Touriva child safety seat, plaintiffs sought sanctions against the defendant pursuant to Rule 37 for various claimed discovery abuses. Among other things, plaintiffs argued that DJG had attempted to conceal a crucial and damaging document known as “CEA 416.” (Plaintiffs explained that “CEA” was an acronym for a “Capital Expenditure Authorization” and was a DJG form which provided a description and justification for a design modification made during the life of a product.) Plaintiffs asked the court to strike DJG’s Answer and preclude DJG from pursuing any of its affirmative defenses in this matter, which would effectively result in the entry of default judgment against DJG. Read More

Court Directs Plaintiff to Provide a Table of Contents or Index for Imaged Documents Produced on CD

Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006)

In this insurance coverage case, defendant had earlier moved to compel the production of documents by plaintiff. Plaintiff responded that it had taken several months to gather the voluminous documents and review them for privileged materials, and finally made available “41 large-sized boxes” of documents for inspection. By agreement of the parties, the documents were digitally imaged and then burned to CD for production. Plaintiff represented that the documents were imaged in the same order as they existed in hard copy, and were numbered in continuous order as found in the boxes. However, plaintiff did not provide any table of contents or index for the imaged materials. Read More

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