Electronic Discovery Law Firm : K&L Gates : Electronic Discovery Law

Frey v. Gainey Transp. Servs., Inc., 2006 WL 2443787 (N.D. Ga. Aug. 22, 2006)

This personal injury litigation arose from an accident involving plaintiff’s car and a tractor-trailer driven by defendant Rogers while he was employed by defendant Gainey Transportation. Ten days after the accident occurred and before any litigation had been filed, plaintiff's counsel sent a letter to Tim Kelly, the Safety Director at Gainey, demanding that Mr. Kelly preserve numerous and varied documents and materials fully described in a fifteen-page attachment to the letter. Plaintiff's counsel asserted that any “destruction or alteration” of the material would be considered “spoliation of evidence.” In this decision, the court denies plaintiff’s motion for sanctions based upon Gainey’s failure to preserve any “QualComm” satellite tracking information.

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In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006)

In this securities class action, the parties had previously agreed on the entry of a stipulated order governing the discovery of material restored from backup tapes maintained by the defendant. (A copy of the Backup Tape Stipulation is available here.) Subsequently, plaintiffs learned from an undisclosed source that additional backup tapes existed which had not been produced, and moved to compel. The court issued an order dated April 3, 2006, which resolved that dispute, along with several other discovery disputes. (A copy of the court’s April 3, 2006 order is available here.) With respect to the newly discovered backup tapes, the court concluded that defendants had not intentionally hid the existence of the tapes, but that they should have been subject to the terms of the parties’ Backup Tape Stipulation. It continued:

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From the August Issue of KPMG Pharmaceutical Insider:

"As most large pharmaceutical companies face dozens of lawsuits at any given time, the rapid growth of electronic documents and e-mail has opened up the new legal frontier of electronic document discovery (EDD).

Drug companies also must take into account sanctions and other penalties. Companies are often subject to sanctions when they do not or cannot produce evidence upon demand, according to Todd Nunn, a partner in the Seattle law firm of Preston Gates & Ellis.

"Companies can really get into trouble for not having adequate policies in place for the retention of electronic documents," says Nunn. "It really affects their ability to respond effectively to litigation." "

Read the entire story here.

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Nat’l Econ. Research Assocs., Inc. v. Evans, 2006 WL 2440008 (Mass. Super. Ct. Aug. 3, 2006)

In this litigation between a consulting firm and its former employee, the court considered the firm’s motion to compel the production of attorney-client privileged communications. Plaintiff sought production of emails sent and received via the employee’s personal, password-protected email account, which were saved in a temporary Internet file on the employee’s company-issued laptop and retrieved through forensic means after his departure from the firm.

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The Sedona Conference®, a nonprofit law and policy think-tank, will host their first educational event in Chicago on September 15 focusing on e-discovery and the new Federal Rules of Civil Procedure.  The conference will be held on the Nortwestern University School of Law campus.  Hon. Lee Rosenthal, U.S. District Court Judge, Southern District of Texas, will keynote the session.  For more information on the conference or to register, visit www.thesedonaconference.org.

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From NPR's All Things Considered:

"Legal Liability: E-mails may travel from sender to receiver in a flash, but their digital trail lingers much longer -- and that has landed some firms in hot water. A 2006 survey of more than 400 companies found that 15 percent have fought a lawsuit triggered by a worker's careless correspondence. One in four firms has had a worker's e-mail subpoenaed, and about the same number say they've fired a worker for misusing electronic correspondence."

More here.

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As the Dec. 1 deadline for new Federal Rules of Civil Procedure draws closer, it's time to go tech or close shop.

""Everybody is a little terrified," said Martha Dawson, a partner with Seattle-based Preston Gates & Ellis. Dawson practices in the firm's document analysis technology group. With some litigants in recent cases subjected to harsh sanctions for bungling e-discovery demands, clients and attorneys are worried about their ability to organize unwieldy information systems, she said. "

Creating particular anxiety is one component of the rules that requires parties to meet and address the preservation of electronic information 21 days before their first scheduling conference. New Rule 26(f) calls for parties to discuss "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." "

Read the entire article from Leigh Jones at National Law Journal here.

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Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400 (2d Cir. 2006)

The plaintiff in this case is an insurance agent formerly associated with the defendant insurance company. Plaintiff and defendant had executed an Agent’s Agreement, and defendant had required that plaintiff lease an agency office-automation system (“AOA”), including hardware and software, from defendant. During the 21 years he was an agent of defendant, plaintiff’s office operations were very much dependent on the AOA. Plaintiff and his staff entered business data and information onto the hard drives of the AOA system on a daily basis, and defendant then uploaded that information on a nightly basis from plaintiff’s computers onto defendant’s computers. In the process, defendant also uploaded plaintiff’s personal information.

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Delta Fin. Corp. v. Morrison, 2006 WL 2403437 (N.Y. Sup. Ct. Aug. 17, 2006)
This case involved breach of contract and fraud claims stemming from an exchange of assets between some of the parties, which took place in August 2001. The opinion resolves the parties’ dispute relating to three categories of electronic documents sought by one of the defendants (“LLC”) from the plaintiff (“DFC”): 1) non-email electronic documents which LLC claimed were not captured by DFC's search process; 2) emails which LLC claimed were not captured by DFC's ninety-day back-up tapes; and 3) emails from January 1, 1999 through July 12, 2000.

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United States v. Magnesium Corp. of Am., 2006 WL 2350155, (D. Utah Aug. 11, 2006)

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Lawrence E. Jaffee Pension Plan v. Household Int’l, Inc., 2006 WL 1898151 (N.D. Ill. July 6, 2006)

In this securities fraud class action, plaintiffs sought to compel production of documents relating to Household's litigation database. During the class period, Household's Office of the General Counsel collected and maintained information regarding all litigation that was being prosecuted, defended, or supervised by attorneys in that department. The purpose of the database was to assist Household's counsel in understanding, managing and providing legal advice to management about each lawsuit. According to Household, attorneys or staff under their direction added comments to the database reflecting the attorneys' mental impressions, conclusions, opinions, and strategies. Household further claimed that it implemented strict controls to protect the confidentiality of these records, and that the database has never been disclosed to Household's outside auditors or any other third party.

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A great article on dynamic data by Microsoft's Tom Burt, Corporate Vice President and Deputy General Counsel, Litigation, and Greg McCurdy, Senior Attorney, in the August 2006 of The Pocket Part, the online supplement to The Yale Law Journal.

"The forthcoming Federal e-discovery Rules are a welcome advance, but they do not address all of e-discovery’s challenging issues. For example, how should the law treat instant messaging (IM) or other forms of real-time communications? When must organizations or individuals preserve dynamic data such as databases or work in progress? Practical realities and established legal principles from the age of typewriters and telephones teach us that businesses should need to preserve real-time communications and dynamic data only when they record them for business purposes."

Click here to read the entire article.

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Preston partner Helen Bergman Moure is a member of the faculty that will present at the timely half-day pre-conference workshop -- "E-Discovery in Patent Litigation:  New Rules, New Tools" -- East Palo Alto, California.  The pre-conference workshop is scheduled for September 27, 2006.

The new Federal Rules of Civil Procedure covering retention and discovery of electronic evidence are expected to go into effect on December 1, 2006.  This is an opportunity to prepare for these significant changes.  The experts will examine the revisions in the context of patent litigation matters.

 For a brochure and further details on this two-day conference, click here.

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An article by Martha Dawson in Law Technology News' August 2006 EDD Showcase:

"On December 1, 2006, assuming no last-minute action from Congress, new Federal Rules of Civil Procedure governing electronically stored information go into effect. The new rules will apply to all cases filed after December 1, and to all pending cases to the extent "just and practicable."

You've heard the news before, probably attended CLE programs discussing them, and may even have the text of the rules on your desk to read sometime soon. But do you understand what these rule changes really mean, as a practical matter, to you and your clients? Are you prepared?"

Click here to read the entire article.

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E.E.O.C. v. Lexus Serramonte, 2006 WL 2329510 (N.D. Cal. Aug. 9, 2006)

In this decision, the court ruled upon plaintiff’s motion to compel defendants to respond to the following:

(1) Interrogatory No. 9 “IDENTIFY each PERSON employed by YOU at YOUR Lexus of Serramonte Facility during the REQUESTED TIME PERIOD providing the following information for each: name, gender, hire date, last date employed if currently laid off, residence addresses, telephone numbers, social security number, and employment position.”; (2) Request No. 17 “An electronic database file, in Quattro Pro readable format, IDENTIFYING YOUR CURRENT employees in the Serramonte Facility including each employees' name, gender, hire date, last date employed if currently laid off, residence addresses, telephone numbers, social security number, and employment position.”; and (3) Request No. 18 “An electronic database file, in Quattro Pro readable format, IDENTIFYING all female employees that worked with or under the supervision of Roderick V. Helaire, Francis Chang, Yan Epshtein and Bob Fraley from 2000 to the present, including each employee's name, hire date, last date employed if currently laid off, residence addresses, telephone numbers, social security number, and employment position.”

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A story today by Larry Abramson on NPR's Day to Day:

"A number of recent high-profile lawsuits suggest that companies must preserve important email documents on their computer systems, or risk major court sanctions. Increasingly, companies are turning to outside vendors to ensure they don't accidentally destroy electronic documents that could come up in a lawsuit. "

Listen to the entire story here.

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Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 2135798 (S.D.N.Y. Aug. 1, 2006)

In a follow up to an earlier decision granting in part and denying in part plaintiff’s motion for sanctions, Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006), the court evaluated plaintiff’s petition for attorneys’ fees and costs associated with the motion. Plaintiff sought $60,216 in fees and costs, and the SRC Defendants argued that plaintiff was to a maximum amount of only $17,658. The court found plaintiff had included time for reviewing 172 boxes of documents produced late by the SRC Defendants, and that this time was improper since plaintiff’s counsel would have had to review these documents anyway. Since the firm's use of block billing made it impossible to identify the work specifically related to the motion, and separate it from unrelated work, the court reduced the requested total of $60,215.76 by 25 percent. Accordingly, the court granted Phoenix's request for attorney's fees and costs associated with bringing the motion for sanctions in the sum of $45,161.82, to be paid equally by the SRC Defendants and their law firm, Mound Cotton. The court further ruled that the SRC Defendants' share “may not be borne by their insurance carriers.” Apparently, Mound Cotton was free to seek reimbursement from its insurance carrier if there was coverage for such.

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As of August 4, 2006, our searchable case database contains 543 cases, 122 of which are cases decided in 2006. The database is an excellent source of information on developing e-discovery case law around the country. And, it allows you to search for cases in a particular jurisdiction. Our case citations follow The Bluebook uniform system of citation, and employ the geographical term abbreviations set out in T.11. Simply type in the jurisdiction’s abbreviation as a keyword search, e.g., "S.D.N.Y." or “D.N.J.” or "N.D. Cal." or "Tex." If you want both state and federal cases, just use the state abbreviation. To narrow down the results, or if you're looking for a particular issue, e.g., "spoliation," you can check that box, and/or any other relevant attributes you'd like to search for, and run it together with the keyword jurisdiction search. For example, a simple “S.D.N.Y.” keyword search produces 72 cases; the same keyword search coupled with “spoliation” produces 19 results.

Click here to visit the database.  Happy searching!

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Petersen v. Union Pacific R.R. Co., 2006 WL 2054365 (C.D. Ill. July 21, 2006)

In this opinion, the magistrate judge overruled defendant’s objections to certain discovery requests, reminding the parties: “Remember, we are talking discovery, not admissibility at trial.” One of the disputed requests for production sought defendant’s document retention policy:

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Lockheed Martin Idaho Techs. Co. v. Lockheed Martin Advanced Envtl. Sys., Inc., 2006 WL 2095876 (D. Idaho July 27, 2006)

In this diversity case, the federal district court awarded the prevailing party its costs under 28 U.S.C. § 1920(4) in three areas: (1) $4.6 million in costs for creating a litigation database; (2) $600,000 in costs for trial evidence presentation; and (3) $200,000 in costs for copies.

The court evaluated the request as follows:

Turning to the first category, the litigation database was necessary due to the extreme complexity of this case and the millions of documents that had to be organized. While the creation of the database is expensive, it is not unreasonably so, and it saved immense time for counsel who otherwise would have to sift through the documents by hand. Given these circumstances, the Court finds that these costs are recoverable under § 1920(4).

With regard to the trial evidence presentation costs, the Court required counsel to put the trial evidence in electronic format. It was important that the evidence presentation be efficient and of high quality. The Court cannot find these costs unreasonable. The Court will likewise approve the third category, the coping costs.

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Paramount Pictures Corp. v. Davis, 2006 WL 2092581 (E.D. Pa. July 26, 2006)

In an earlier opinion (Paramount Pictures Corp. v. Davis, 234 F.R.D. 102 (E.D. Pa. 2005), summarized here), the court denied summary judgment but concluded that an adverse inference sanction was warranted based upon defendant’s spoliation of evidence. In this opinion, the court sets out its findings of fact and conclusions of law from the subsequent bench trial, and decides the case in favor of Paramount.

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From George Socha and Thomas Gelbmann's August 2 story in Law Technology News: "Results are in for the fourth annual Socha-Gelbmann Electronic Discovery Survey, and here are highlights of the report. In general, spending continues to grow, although with changing processes and tightening prices some providers are beginning to feel the pinch.

Consolidation continues as well, with larger electronic-data-discovery providers buying smaller ones, and companies from outside the market looking for opportunities to enter what they see as a lucrative area."

Read the highlights here or visit http://www.sochaconsulting.com/2006survey.htm for more detail.

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On Time Aviation, Inc. v. Bombardier Capital, Inc., 2006 WL 2092075 (D. Conn. July 26, 2006)

In this order, the district court overruled defendant’s objections to certain discovery rulings made by the magistrate judge. Defendants had argued that plaintiff's consultant and expert witness (Schuller) must have deliberately concealed relevant information, since he had not produced a particular email. Rejecting defendants’ argument, the court noted that they had proffered no evidence that Schuller deliberately deleted the email, and that Schuller had stated he believed he never received it because all his other emails from that time period were printed out in chronological order, and the email was not there. The court further noted that the email in question did not contain Schuller’s email address, “so there is no confirmation that it was sent to or received by him.”

The court further overruled defendants’ objections to the magistrate’s finding that plaintiff had satisfied its discovery obligations by providing affidavits from two other witnesses which stated that they generally did not use email, did not have in their possession any such messages related to the case, and that any messages they had sent to or received from Schuller were already produced by Schuller.

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