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

Monthly Archives: July 2006

‘Clawback’ Agreements Lose Their Grip in Court

Posted in NEWS & UPDATES

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… Continue Reading

Court’s Finding that Rambus Committed Spoliation of Evidence Does Not Jeopardize Corporate America’s Use of Legitimate Document Retention Policies

Posted in CASE SUMMARIES

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… Continue Reading

Defendant’s Delay in Producing Responsive Email Warranted Monetary Sanctions

Posted in CASE SUMMARIES

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… Continue Reading

Court Denies Motion to Dismiss Complaint as Discovery Sanction, Finding No Willful Disregard or Bad Faith

Posted in CASE SUMMARIES

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… Continue Reading

Court Denies Motion to Compel Plaintiff to Correlate Information Produced Electronically to Particular Document Requests

Posted in CASE SUMMARIES

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… Continue Reading

Plaintiff’s Intentional and Bad Faith Discovery Misconduct Warrants Dismissal of Complaint

Posted in CASE SUMMARIES

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… Continue Reading

Are Litigators Ready for the New Meet-and-Confer Sessions?

Posted in NEWS & UPDATES

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… Continue Reading

Court Quashes Subpoena to Defendants’ Computer Forensics Consultant

Posted in CASE SUMMARIES

Trammell v. Anderson Coll., 2006 WL 1997425 (D.S.C. July 17, 2006) 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… Continue Reading

Summary Judgment Not Avoided By Reviving Past Discovery Disputes; Court Criticizes Plaintiff’s Overly Broad Pre-Suit Preservation Letter

Posted in CASE SUMMARIES

Turner v. Resort Condos. Int’l, LLC, 2006 WL 1990379 (S.D. Ind. July 13, 2006) 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… Continue Reading

Magistrate Approves Petition for $72,910 in Attorneys’ Fees and Costs Relating to Discovery Dispute

Posted in CASE SUMMARIES

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’… Continue Reading

Court Denies Motion to Compel Return of Inadvertently Produced Privileged Materials

Posted in CASE SUMMARIES

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… Continue Reading

“Meeting the Demands of Document Retention — SOX Compliance, Risk Reduction and Information Management”

Posted in EVENTS

This "Live, Interactive Teleconference with Q & A Session" is scheduled for Wednesday, July 26, 2006, from 10:00 – 11:30 a.m. Pacific Time.  Preston Gates partner Todd L. Nunn, will serve as a panelist serving practical strategies for reducing the risk associated with information management and preservation.  For additional details on this conference sponsored by Strafford Publications, Inc., click here.

Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search

Posted in CASE SUMMARIES

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… Continue Reading

E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure – Panel Discussion

Posted in EVENTS

Preston Gates’ Helen Moure will be a panelist for this discussion forum scheduled from 12:15-1:15 PM on Tuesday, July 18, 2006, Rainier Square Conference Center, 1301 Fifth Avenue, Atrium Level 3 (between Fourth & Fifth and Union & University), Seattle, Washington.  The session will feature The Honorable Ronald J. Hedges, United States Magistrate Judge, Newark, New… Continue Reading

Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction

Posted in CASE SUMMARIES

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… Continue Reading

Court Finds Inadvertent Production of Privileged Spreadsheets Did Not Effect Waiver

Posted in CASE SUMMARIES

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:

New Evidence Rule 502 Addressing Privilege Waiver To Be Published for Public Comment in August 2006

Posted in FEDERAL RULES AMENDMENTS

At its June 22-23, 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed new Evidence Rule 502. The proposed new rule “opts for the middle ground” in determining whether inadvertent disclosure is a waiver, in accord with… Continue Reading

Court Denies Motion to Compel Forensic Examination of Opposing Party’s Hard Drives

Posted in CASE SUMMARIES

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,… Continue Reading

Court Denies Request for Forensic Examination of Opposing Party’s Hard Drives

Posted in CASE SUMMARIES

Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006) 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… Continue Reading

“Developing an Effective E-Discovery Response Plan” Session To Be Offered

Posted in EVENTS

Todd Nunn, Preston Gates partner, will be a featured speaker at the upcoming Estrin LegalEd Paralegal SuperConference Minneapolis on September 14-15, 2006.  The way in which e-discovery requests are handled can have a direct and profound impact on the outcome of litigation.  This workshop will illustrate the importance of having a well-reasoned response plan that provides the… Continue Reading