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

Monthly Archives: August 2006

Court Denies Motion for Sanctions Based upon Defendant’s Failure to Maintain Certain Data, Noting that Plaintiff’s Preemptive “Spoliation Letter” Cannot Make “End Run” Around FRCP

Posted in CASE SUMMARIES

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… Continue Reading

Court Rules that Employment of De-Duplication Technology and Use of Search Terms are Reasonable Means of Narrowing Production

Posted in CASE SUMMARIES

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.)… Continue Reading

E-Discovery Opens a New World in Drug Litigation

Posted in NEWS & UPDATES

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… Continue Reading

Court Holds that Former Employee’s Emails with Private Attorney, Which Were Retrieved Forensically from Employer-Provided Laptop Computer, Are Privileged

Posted in CASE SUMMARIES

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… Continue Reading

Upcoming Sedona Conference Event

Posted in EVENTS

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… Continue Reading

Wipeout: The Dangers of Workplace Websurfing

Posted in NEWS & UPDATES

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… Continue Reading

E-Discovery Zero Hour Approaches

Posted in NEWS & UPDATES

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… Continue Reading

Second Circuit Certifies Question to N.Y. Court of Appeals: Can electronic data, computer programs, or electronic data saved in computer programs support a claim for conversion?

Posted in CASE SUMMARIES

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… Continue Reading

New York Court Orders Additional Searches of Restored Data and Backup Tapes, Shifting All Costs, Including Attorney Fees for Privilege Review, to Requesting Party

Posted in CASE SUMMARIES

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… Continue Reading

Party Seeks Preservation Order Where Phase III of Litigation Could Occur in 2009, Citing Concerns re Document Retention Policy

Posted in CASE SUMMARIES

United States v. Magnesium Corp. of Am., 2006 WL 2350155, (D. Utah Aug. 11, 2006) In this decision, the court considered the government’s motion for an order requiring certain defendants "to maintain documents in their possession that are relevant to this case throughout all phases of the litigation." In making the request, the government indicated… Continue Reading

Court Finds In-House Counsel’s Litigation Database Privileged; Disclosure to Auditor did not Effect Waiver

Posted in CASE SUMMARIES

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… Continue Reading

E-Discovery of Dynamic Data and Real-Time Communications: New Technology, Practical Facts, and Familiar Legal Principles

Posted in NEWS & UPDATES

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… Continue Reading

BNA’s Patent Litigation Strategies Update

Posted in EVENTS

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… Continue Reading

Nuances of the New Rules

Posted in NEWS & UPDATES

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… Continue Reading

Defendant Not Required To Produce Employee Contact Information in Electronic Form

Posted in CASE SUMMARIES

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… Continue Reading

Trial-Bound Companies Learn Lesson: Save E-mail

Posted in NEWS & UPDATES

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… Continue Reading

Court Awards $45,162 in Fees and Costs for Sanctions Motion, to be Shared Equally by Defendants and Their Counsel

Posted in CASE SUMMARIES

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… Continue Reading

eDiscoverylaw.com’s Searchable Case Database Now Contains Over 500 Cases, and Allows You to Search by Jurisdiction

Posted in NEWS & UPDATES

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… Continue Reading

Defendant’s Document Retention Policy “Clearly Relevant” and Must Be Produced

Posted in CASE SUMMARIES

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:

Spoliation Inference Further Supports Court’s Finding that Defendant Infringed Motion Picture Copyrights

Posted in CASE SUMMARIES

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… Continue Reading

Fourth Annual Socha-Gelbmann Electronic Discovery Survey Released

Posted in NEWS & UPDATES

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… Continue Reading

No Evidence that Plaintiff’s Expert Deliberately Concealed Relevant Information

Posted in CASE SUMMARIES

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… Continue Reading