In a July 24, 2006 National Law Journal article, Andrew Rhys Davies writes, "Reviewing electronic documents for privilege can be horribly time-consuming and expensive; and experience teaches that privileged material often slips through the net, as reviewers miss privileged communications buried in long e-mail chains or in invisible metadata. Against that background, this article examines how pending and proposed amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence seek to address these problems. "
Court's Finding that Rambus Committed Spoliation of Evidence Does Not Jeopardize Corporate America's Use of Legitimate Document Retention Policies
Samsung Elecs. Co., Ltd. v. Rambus, Inc., 2006 WL 2038417 (E.D. Va. July 18, 2006)Samsung filed this action seeking a declaratory judgment, inter alia, that four patents held by Rambus were unenforceable by virtue of the doctrines of unclean hands, equitable estoppel, patent misuse, waiver and laches. The patents-in-suit were the same as the four patents-in-suit in Rambus, Inc. v. Infineon Technologies AG, No. CIV. A. 3:00cv524 (E.D.Va.) ("Rambus v. Infineon"). Rambus asserted counterclaims against Samsung, alleging infringement of two of the patents. Continue Reading...
Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL 2038534 (M.D. Fla. July 19, 2006)After patent infringement litigation was resolved through a settlement agreement in which Fortin was granted a license to practice certain patents, Omega Patents filed this lawsuit to enforce the settlement agreement, believing that certain royalties from the patents were being under-reported. In this opinion, the court granted plaintiff’s motion for sanctions to be imposed against one of the defendants under Rule 37(d). Continue Reading...
Court Denies Motion to Dismiss Complaint as Discovery Sanction, Finding No Willful Disregard or Bad Faith
Gen. Med., PC v. Morning View Care Ctrs., 2006 WL 2045890 (S.D. Ohio July 20, 2006)Plaintiff’s complaint alleged claims for breach of contract and tortious interference arising out of a contract for General Medicine to provide medical care at six of Morning View's residential health care facilities. In this opinion, the district court adopted the magistrate’s Report and Recommendation that defendant’s motion to dismiss complaint as a discovery sanction be denied. Continue Reading...
Court Denies Motion to Compel Plaintiff to Correlate Information Produced Electronically to Particular Document Requests
Eastman Kodak Co. v. Sony Corp., 2006 WL 2039968 (W.D.N.Y. July 20, 2006)In this case, the special master issued a Report and Recommendation recommending, inter alia, that Sony's motion to compel Kodak to more specifically correlate information produced electronically via a computer server, CD-Roms and DVDs, to Sony's document requests be denied. Sony objected to the Report and asked the court to direct Kodak to produce the documents in the form requested by Sony, or, in the alternative to produce documents in the form requested for certain of the more narrow document requests. Sony argued that if the Special Master's Report and Recommendation were allowed to stand, it would be deprived of due process because it would be virtually impossible to find relevant documents "hidden" in the electronic equivalent of approximately 300 million pages of produced documents. Continue Reading...
Covucci v. Keane Consulting Group, Inc., 2006 WL 2004215 (Mass. Super. Ct. May 31, 2006)In this age discrimination case, defendants moved to dismiss the complaint as a sanction for the intentional spoliation of material evidence by plaintiff Covucci. After conducting a hearing and taking testimony from Covucci, the court found that defendants had proved by clear and convincing evidence that plaintiff intentionally and in bad faith engaged in a pattern of conduct that encompassed the destruction of evidence relating to the creation of an email that was the central document in the case, provided false and misleading testimony at his deposition and at the evidentiary hearing, and that his conduct was calculated to interfere with the judicial system's ability impartially to adjudicate the case. The court further found that the plaintiff's misconduct had prejudiced the defendants in their ability to defend against these claims and that dismissal of the complaint was warranted. Continue Reading...
In an article in the National Law Journal, Carolyn Southerland writes, "Lawyers accustomed to what has been described by at least one federal district judge as "drive-by" meet and confers under the federal rules should get ready to park and prepare for an extended conversation. Whether one is a data producer (traditionally defendants) or a data requester (traditionally plaintiffs), the amendments to Rule 26(f) of the Federal Rules of Civil Procedure are going to profoundly affect parties' discussions in "meet and confer" discussions concerning discovery.
For Luddite lawyers, these rule changes will require that they venture into a world that they dislike and perhaps on some level fear. But just as lawyers have survived past changes in the rules, they will survive these, too, and their clients and practices may well be better for it."
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Court Denies Discovery Related to Party's Document Retention Policies and Computer Systems and Finds Hard Copy Production Adequate
India Brewing, Inc. v. Miller Brewing Co., 2006 WL 2023396 (E.D. Wis. July 13, 2006)In this case involving claims and counterclaims alleging breach of contract, fraudulent inducement, and negligent misrepresentation, the court ruled on plaintiff’s motion to compel discovery. Continue Reading...
In this employment discrimination case, plaintiffs alleged that plaintiff Dr. Jena Trammell, a tenured professor at defendant Anderson College, was subjected to a hostile work environment by another professor (Dr. Teitloff) and that the College retaliated against her for filing a claim with the EEOC. Continue Reading...
Summary Judgment Not Avoided By Reviving Past Discovery Disputes; Court Criticizes Plaintiff's Overly Broad Pre-Suit Preservation Letter
In this opinion, the court granted defendants’ motion for summary judgment on plaintiff’s pregnancy discrimination claim, and denied plaintiff’s motion for sanctions based on alleged discovery abuses. In ruling on the motion for summary judgment, the court found that plaintiff had not come forward with any evidence that raised a reasonable dispute about the reasons behind her termination. “She has noted the use of two font sizes on a single document and metadata suggesting that one of the [Reduction in Force] lists was modified after the lawsuit was filed. However, the most recent document production and the deposition testimony of RCI's in-house information technology witness establish that at least nine emails confirmed Turner's inclusion in the RIF before she told anyone at RCI that she was pregnant.” Continue Reading...
McDowell v. Gov’t of D.C., 2006 WL 1933809 (D.D.C. July 11, 2006)
In an earlier opinion, summarized here, Magistrate Judge John A. Facciola denied the plaintiff’s request for judgment to be entered against the defendant for various discovery failings. The court concluded that the discovery dispute could be adequately remedied by the imposition of attorneys' fees and costs against defendants and the possibility of a jury instruction. In this opinion, the court evaluated plaintiffs’ fee petition and awarded plaintiff $72,910 in fees and costs.
Marrero Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. Puerto Rico July 11, 2006)
In this opinion, the court used a five-factor test to conclude that the defendant’s “inadvertent” production of privileged materials effected a waiver.
On March 14, 2006, a third-party defendant in the case filed a motion for permission to file a counterclaim against Esso. Attached to the proposed counterclaim were several documents that were stamped with the prefix "VEGAC." Those documents had been disclosed by Esso during the months of November and December 2005. Three days later, Esso recognized the exhibits as privileged and claimed that they were inadvertently produced due to an "errant mouse click."
"Meeting the Demands of Document Retention -- SOX Compliance, Risk Reduction and Information Management"
Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search
Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)
Plaintiff Jonathan Peskoff sued to recover damages for financial injury resulting from defendant Michael Faber's operation of a venture capital fund, called NextPoint Partners, LP, and the fund's related entities. NextPoint GP, LLC ("NextPoint GP") was the general partner of the venture capital fund. Both Peskoff and Faber were managing members of NextPoint GP. Peskoff alleged fraud and related claims.
Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction
Washington Alder LLC v. Weyerhaeuser Co., 2004 WL 4076674 (D. Or. May 5, 2004)
In this recently published opinion, the court set forth its corrected order to show cause why sanctions should not be imposed on Weyerhaeuser for failing to preserve electronic and paper records potentially relating to antitrust litigation after June 8, 1999, when Weyerhaeuser was notified of a forthcoming antitrust claim. Plaintiff claimed that Weyerhaeuser apparently did not issue a records retention order until April 2003, and that documents potentially relevant to the case – both electronic and paper – may have been destroyed prior to then, either deliberately or by failing to take the steps necessary to preserve those documents. Plaintiff asked the court to instruct the jury that it may draw an adverse inference from the destruction of documents.
Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006)
This opinion describes the court’s in camera review of mathematical spreadsheets and other documents (“adverse impact documents”) inadvertently disclosed by the defendant, and concludes that no waiver was effected. All five relevant factors considered by the court weighed against finding waiver:Continue Reading...
A copy of proposed new Evidence Rule 502 and the accompanying Committee Note is available here as an attachment to the May 15, 2006 Report of the Advisory Committee on Evidence Rules.
Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June 30, 2006)
In this sexual harassment action, a former police department employee asserted that her supervisor (Sgt. Penning) subjected her to unwelcome sexual advances and requests for sexual favors. This memorandum opinion grants Sgt. Penning’s motion to compel the production of original journals, notes, calendars, and other documents, so that defendant's forensic document expert might subject these items to nondestructive testing. The court rejected as unreasonable the conditions proposed by plaintiff that her own expert, as well as perhaps plaintiff's counsel, be present at all times during the forensic examination by defendant's document expert. The court noted that, in general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. “In cases such as this, where purely nondestructive testing is proposed, the court generally allows the examiner to perform his or her work without being scrutinized by the opposing expert.” Further, the court observed that defendant's expert would be required to file a Rule 26(a)(2) report disclosing all his findings and would be subject to deposition and cross-examination. “This provides sufficient safeguard for any legitimate concern by plaintiff regarding the expert's methodology.”
In this order, the court denied defendant’s motion to allow the forensic examination of plaintiff’s computer hard drives. Although the court noted that, in some cases, it may be appropriate to allow a forensic examination of computer hard drives, it concluded that defendant’s unsupported accusations of misconduct did not justify the remedy sought: Continue Reading...