Archive: October 2006

1
E-Discovery for Defense Attorneys
2
Court Denies Request for Production in Native Format and Imaging of Hard Drives
3
GETTING PAST THE HYPE
4
Ethics for Corporate Counsel: The New Rules and Recent Trends in Professional Liability
5
Modern Discovery: New Rules, New Approaches
6
Ninth Circuit Upholds Dismissal of Complaint and $65,000 Sanction for Spoliation of Computer Files Under Court’s Inherent Authority
7
Magistrate Recommends Adverse Inference Instruction Based in Part on Former Employee’s Cancellation of Personal Yahoo Email Account
8
Default Judgment Warranted by Deliberate and Bad Faith Spoliation, and to Deter Other Would-Be Spoliators

E-Discovery for Defense Attorneys

Washington Defense Trial Lawyers (WDTL) sponsors "E-Discovery for Defense Attorneys" at the Washington State Convention & Trade Center from 8 AM to Noon — November 2, 2006.  Preston DATG partner, Todd Nunn, will present "A Realist’s View of the Impact of E-Discovery on a Defense Firm" and contribute to the CLE’s ethics discussion with John Schedler, Lee Smart Cook, Martin & Patterson, James Macpherson, Kopta & Macpherson and Gregory Shelton, Williams Kastner & Gibbs. 

Court Denies Request for Production in Native Format and Imaging of Hard Drives

Ponca Tribe of Indians of Okla. v. Cont’l Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006)

In this decision, the court ruled on plaintiffs’ motion to compel certain electronic information.

First, the court rejected plaintiffs’ request that defendant permit them to image or download to a database all information stored in defendant’s “data historian.” Plaintiffs initially proposed imaging or mirroring the data historian as a means of easily obtaining the requested information. However, defendant objected and argued that such imaging would necessarily require approximately 100 days to complete and that any such imaging would violate the licensing for the operating software used. Plaintiffs then suggested that the information be downloaded into a database using software currently possessed by defendant. Defendant responded that it did not own the software modules, but that such software could be purchased for approximately $5,000 and would require another $5,000 in training/programming to make the modules useable. Read More

GETTING PAST THE HYPE

"Practical Advice for Developing an Effective Discovery Response Plan"

The Preston DATG partners look forward to leading a succession of briefings designed to assist clients in negotiating the perils of electronic discovery with advice for developing actionable plans and tools for navigating through the new federal rules which go into effect December 1, 2006.   Breakfast meetings are scheduled during the next four weeks in five locations:  Spokane–October 24, Seattle–October 31, Orange County–November 8, San Francisco–November 9 and Portland–November 9.

The Washington, DC office of Preston Gates Ellis & Rouvelas Meeds LLP hosts the session during a lunch conference on November 16, 2006.

For further information regarding exact times and locations, please contact David Bowerman at 206.370.6726 or dbowerman@prestongates.com.

 

Ethics for Corporate Counsel: The New Rules and Recent Trends in Professional Liability

Wednesday, November 1, 2006
Washington State Convention & Trade Center, Room 2AB
Seattle, WA

Martha Dawson is speaking at this upcoming Washington State Bar Association event on Ethical Issues in Electronic Discovery.  Other speakers include representatives from PACCAR, Avista Corporation, and the University of Seattle School of Law.  Visit www.wsbacle.org/seminars for more information.

 

Modern Discovery: New Rules, New Approaches

Examine crucial discovery issues facing practitioners today.  Martha Dawson, Program Committee Chair for this WSBA-sponsored CLE, will give an update on the ethical obligations in the complex world of e-discovery on Thursday, October 26, 2006, Seattle Hilton.  Preston partners Helen Bergman Moure and Todd Nunn will moderate separate panels that will explore the ramifications of the new federal rules and the new state rules, both actual and proposed, that relate to litigation and discovery.   Download the event brochure here.

Ninth Circuit Upholds Dismissal of Complaint and $65,000 Sanction for Spoliation of Computer Files Under Court’s Inherent Authority

Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006)

Dr. Mauricio Leon (“Leon”) was hired by the defendant in 2001, and in mid-2002, he began complaining of mismanagement of a federally-funded project.  In April 2003, IDX put Leon on unpaid leave and brought an action for declaratory relief, seeking to establish that it could terminate him without violating the anti-retaliation provisions of the False Claims Act, SOX and the ADA.  In May 2003, Leon filed his own action, which included claims for retaliation under various statutes and state law claims.
Read More

Magistrate Recommends Adverse Inference Instruction Based in Part on Former Employee’s Cancellation of Personal Yahoo Email Account

Easton Sports, Inc. v. Warrior LaCrosse, Inc., 2006 WL 2811261 (E.D. Mich. Sept. 28, 2006)

Plaintiff was in the business of manufacturing and selling a variety of hockey equipment; the defendants were related sporting goods companies that, at the time of the events giving rise to the complaint, were entering into the hockey equipment business through the acquisition of a hockey equipment manufacturer. Plaintiff alleged that defendants sought to enter the hockey equipment business through a “campaign of industrial espionage, stealing Easton’s trade secrets and raiding its employees.” Plaintiff alleged that defendants had used secret inducements to entice Hamoyun Ghassemi to steal its proprietary information and go to work for defendants. Before leaving plaintiff’s employ, Ghassemi downloaded numerous files and used his personal Yahoo account to forward files to himself and to defendants. The day after the complaint was filed, in which it was alleged that Ghassemi misappropriated plaintiff’s documents and used his personal Yahoo account to communicate with defendants, Ghassemi cancelled his Yahoo account. (Ghassemi was not named as a defendant in the complaint.) Read More

Default Judgment Warranted by Deliberate and Bad Faith Spoliation, and to Deter Other Would-Be Spoliators

Arista Records, L.L.C. v. Tschirhart, 2006 WL 2728927 (W.D. Tex. Aug. 23, 2006)

In this copyright infringement action based on internet file-sharing activities, plaintiffs sought terminating sanctions against defendant for spoliation of evidence. Plaintiffs alleged that defendant willfully destroyed critical evidence on her computer hard drive after notice of the lawsuit, notice of her obligation to preserve such evidence, and notice of the court’s order to produce her hard drive to plaintiffs so that a duplicate could be made for examination by plaintiffs’ computer forensics expert. Plaintiffs alleged that defendant deliberately used “wiping” software to permanently remove data from her hard drive – and then attempted to “cover her tracks” by deleting the “wiping” software before producing the hard drive to plaintiffs. Read More

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