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

Monthly Archives: June 2006

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

Posted in CASE SUMMARIES

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… Continue Reading

Court Requires Production of Electronic Documents in Native Format

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

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

Posted in CASE SUMMARIES

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… Continue Reading

Court’s Chambers Used to Make Forensic Image of Defendant’s Hard Drive; Court Enters Protective Order Directing Plaintiffs Not to Disclose Contents Unrelated to the Action

Posted in CASE SUMMARIES

Warner Bros. Records, Inc. v. Souther, 2006 WL 1549689 (W.D.N.C. June 1, 2006) In this case, plaintiffs sued for copyright infringement, contending that defendant unlawfully downloaded and distributed copyrighted materials through the use of a peer-to-peer, online media distribution system. Defendant denied the allegations and further denied giving anyone permission to use the computer to… Continue Reading

Fact Disputes Coupled with Adverse Inference from Possible Spoliation Allow Plaintiffs to Avoid Summary Judgment

Posted in CASE SUMMARIES

Morgan v. U.S. Xpress, Inc., 2006 WL 1548029 (M.D. Ga. June 2, 2006) This case involves a motor vehicle accident about which plaintiffs and defendant offered entirely different theories. Plaintiffs alleged that the accident occurred when a U.S. Xpress tractor-trailer pulled out from the shoulder of the road and turned sharply in front of Wes… Continue Reading

Magistrate Finds Litigation Hold Notices Relevant, But Not Subject To Discovery Because Privileged

Posted in CASE SUMMARIES

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1520227 (S.D.N.Y. June 1, 2006) and Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1295409 (S.D.N.Y. May 10, 2006) In these two opinions, the magistrate denied motions to compel plaintiff to produce document retention notices that it had issued regarding the litigation. Plaintiff resisted on… Continue Reading

Magistrate Orders Production of Payroll and Timekeeping Records in Electronic, Manipulable Form Despite Prior Hard Copy Production

Posted in CASE SUMMARIES

Ayers v. SGS Control Servs., 2006 WL 1519609 (S.D.N.Y. Apr. 3, 2006) In a previous ruling, summarized here, the court ordered defendants to produce spreadsheets containing mathematical calculations regarding the payroll and timekeeping data. See Ayers v. SGS Control Servs., 2006 WL 618786 (S.D.N.Y. Mar. 9, 2006), and Ayers v. SGS Control Servs., 2006 WL… Continue Reading