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

Monthly Archives: February 2007

Court Remands to Magistrate Judge Question of Whether Privileged Emails Printed and Produced by E-Discovery Vendor Should Be Returned


Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 WL 329290 (D.N.J. Jan. 31, 2007 (Unpublished) In this case, plaintiff claimed that it inadvertently produced over 500 privileged emails that had been deleted from a single Lotus Notes DVD, but were nonetheless printed and produced by its outside e-discovery vendor. According to plaintiff, the privileged emails (and… Continue Reading

Court Narrows Discovery Requests, Finding Information Sought “Not Reasonably Accessible” Because of Undue Burden


Ameriwood Industries, Inc. v. Liberman, 2007 WL 496716 (E.D. Mo. Feb. 13, 2007)   In this case, plaintiff alleged that defendants improperly used confidential information while in plaintiff’s employ to sabotage plaintiff’s business relationships.  Defendants asserted that plaintiff’s lost sales were due to plaintiff’s own mismanagement and not defendants’ alleged misconduct.  Defendants requested all plaintiff’s… Continue Reading

Magistrate Judge Explains Why Discovery Sanctions Against Defendant Were Not Warranted


Williams v. Sprint/United Mgmt. Co., 2007 WL 214320 (D. Kan. Jan. 23, 2007) Previously, Chief District Judge John W. Lungstrum had remanded this matter to the Magistrate Judge for factual findings concerning and an explanation of the reasons for the denial of plaintiffs’ motion for sanctions. This opinion sets out Magistrate Judge David J. Waxse’s… Continue Reading

Court Grants Plaintiff Access to Computers Acquired by Defendant Two Years After Alleged Misappropriation


Frees, Inc. v. McMillian, 2007 WL 184889 (W.D. La. Jan. 22, 2007) This litigation involved claims against a former employee for violations of the Computer Fraud and Abuse Act. Plaintiff claimed that defendant had removed proprietary information from his company-provided laptop in connection with his November 2003 departure, and then used that information after he… Continue Reading

Potential Objects of Evidence Must Be in Party’s Possession, Custody, or Control for Any Duty to Preserve to Attach


Phillips v. Netblue, Inc., 2007 WL 174459 (N.D. Cal. Jan. 22, 2007) In this action involving alleged violations of the Controlling the Assault of Non-Solicited Pornographic and Marketing (“CAN-SPAM”) Act of 2003, defendants moved for dismissal based upon plaintiff’s alleged failure to preserve evidence.  United States District Judge Samuel Conti started by explaining the nature… Continue Reading

Inadequate Legal Hold Measures, and Resulting Spoliation, Warrant Sanctions


In re NTL, Inc. Sec. Litig., 2007 WL 241344 (S.D.N.Y. Jan. 30, 2007)   In this opinion, Magistrate Judge Andrew J. Peck granted plaintiffs’ motion for sanctions in the form of an adverse inference instruction and awarded plaintiffs their costs and attorneys’ fees incurred in connection with the sanctions motion and the additional discovery costs… Continue Reading

Government’s Negligent Failure to Preserve Evidence Did Not Warrant Dismissal


Miller v. Holzmann, 2007 WL 172327 (D.D.C. Jan. 17, 2007) In this decision, Magistrate Judge John H. Facciola recommended that defense motions for dismissal as a sanction for the government’s alleged discovery abuses be denied. One event that was cited as partial support for the motions was the destruction of a government file in accordance… Continue Reading

MDL Case Management Order Addresses Various E-Discovery Issues


In re Seroquel Prods. Liab. Litig., 2007 WL 219989 (M.D. Fla. Jan. 26, 2007) In this opinion, the district court adopted the report and recommendations of the magistrate judge relating to the parties’ joint motion for entry of case management orders. The modified case management order entered by the court contained a number of provisions… Continue Reading

Court Denies Access to Hard Drives as Unwarranted “Fishing Expedition”


Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL 169628 (M.D. Fla. Jan. 18, 2007) Plaintiff sued two former employees who left to form a competing business (“ARS”), alleging among other things that defendants undertook to cover up their actions by destroying information stored on plaintiff’s computers. In discovery, plaintiff sought and moved to compel the… Continue Reading

Court Sets Hearing on Plaintiffs’ Proposed Email Search Protocol and Requests Additional Information


Apsley v. Boeing Co., 2007 WL 163201 (D. Kan. Jan. 18, 2007) In this employment discrimination case, plaintiffs moved to compel further responses and production of information from the defendants, and also asked the court to rule on plaintiffs’ email search protocol. Plaintiffs sought to compel Boeing and defendant Spirit Aerosystems to produce emails under… Continue Reading

Audio Broadcast: Electronic Records Management Pioneers Share Practical Tips

Posted in EVENTS

Electronic Records Management Pioneers Share Their Tips on What Works, What’s Practical, and What Not to Do Tuesday, February 20, 2007 2:00-4:30PM ET Don’t miss this Special Counsel telecast event featuring K&L Gates’ partner David Cohen, co-chair of the firm’s Document Analysis Technology Group (DATG) and Records Management practice.  Program Overview: The new E-discovery rules… Continue Reading

Court Allows Plaintiffs to Conduct Expedited Discovery Regarding Possible Spoliation


Roberts v. Canadian Pac. R.R. Ltd., 2007 WL 118901 (D. Minn. Jan. 11, 2007) In this decision, Chief District Judge James M. Rosenbaum granted plaintiff’s motion for leave to conduct limited discovery concerning spoliation of evidence on an expedited basis. The case concerned a train derailment accident that occurred near Minot, North Dakota, and was… Continue Reading

Court Grants Protective Order Shielding Plaintiffs From Re-Producing ESI in Native Format, But Denies Relief as to Prospective Production


In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426 (E.D.N.Y. Jan. 12, 2007) This case is a consolidated multidistrict litigation brought by some plaintiffs as a putative class action, as well as by other individual plaintiffs who sued exclusively on their own behalf. In this decision, Magistrate Judge James Orenstein… Continue Reading

Ethical Considerations in Light of the Recent E-Discovery Amendments to the Federal Rules

Posted in NEWS & UPDATES

By Carolyn M. Branthoover and Karen I. Marryshow Electronic communications and devices have changed the way we live and work. As those changes have occurred, litigants and courts have struggled with the application of traditional discovery rules to ever-evolving forms of electronically stored information. On December 1, 2006, several important amendments to the Federal Rules… Continue Reading