Archive: March 2007

1
Costs of Special Master Appointed to Manage Discovery of City’s Computers to be Paid by City as Spoliation Sanction
2
10 Worst E-Discovery Mistakes and How to Avoid Them
3
Though Relevant, Defendant’s Litigation Hold Notices Were Protected From Discovery by Attorney-Client Privilege
4
$1.58 Billion Judgment Against Morgan Stanley Reversed
5
Court Sustains Objections to Many Requests in Light of Burden Claimed, But Orders Production of Certain Documents in Electronic Format
6
Court Orders Defendant to Restore One-Fourth of Its Backup Tapes, at Defendant’s Expense, Given Gaps in Production
7
What You Need to Know About Public Records and Open Meetings in Oregon
8
Defendant to Certify it Produced All Responsive Documents, Where Deposition Testimony Cast Doubt on Counsel’s Diligence in Monitoring Production Efforts
9
Equivocal Demand Letters Did Not Trigger Duty to Preserve; No Duty To Run System-Wide Key Word Searches
10
Holding that Accessible Data Must be Produced at the Cost of the Producing Party, Court Orders Defendant to Conduct Further Email Search

Costs of Special Master Appointed to Manage Discovery of City’s Computers to be Paid by City as Spoliation Sanction

Padgett v. City of Monte Sereno, 2007 WL 878575 (N.D. Cal. Mar. 20, 2007)

Plaintiffs in this litigation sued the city of Monte Sereno and several city employees for civil rights violations and other torts.  Among other things, plaintiffs alleged that certain city employees had sent plaintiffs an anonymous, threatening letter that included a newspaper article downloaded from the Internet.  One city employee (Rice) subsequently admitted to authoring and sending the threatening letter from her workstation at City Hall.  Although Rice indicated that she wrote the letter at her own direction without telling anyone about it, plaintiffs contended that Rice wrote the letter at the direction of other city employees, including the city manager (Loventhal).  To explore this allegation, plaintiffs moved to compel inspection of the city’s computers, printers and backup tapes.
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10 Worst E-Discovery Mistakes and How to Avoid Them

K&L Gates partner Todd L. Nunn will highlight some of the most common e-discovery blunders that parties and their counsel make, and offer practical guidance on how to avoid these missteps, at the Washington State Bar Association’s upcoming CLE event entitled "DARE TO DISCOVER: How to Employ and Respond to Discovery Tactics."  The program will take place on Thursday, April 5, 2007, from 8:25 a.m. – 4:15 p.m., with check-in and walk-in registration beginning at 7:30 a.m.  The location of the event is:  

Red Lion on Fifth Avenue, Emerald Ballroom I
1415 Fifth Avenue
Seattle, WA 98101

Todd’s presentation, "10 Worst E-Discovery Mistakes and How to Avoid Them," begins at 2:45 p.m.

For more information, or to register, click here.

Though Relevant, Defendant’s Litigation Hold Notices Were Protected From Discovery by Attorney-Client Privilege

Capitano v. Ford Motor Co., 831 N.Y.S.2d 687 (N.Y. Sup. Ct. 2007)

In this product liability case, plaintiffs sought production of defendant’s “suspension orders,” also known as "litigation hold notices."  Plaintiffs argued that the suspension orders should be produced in light of the fact that Ford was unable to produce certain documents.  Plaintiffs contended that, with access to the suspension orders, they would be able to determine if the documents in question were intentionally or negligently destroyed, or perhaps secure information which may lead to the discovery of the missing documents.
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$1.58 Billion Judgment Against Morgan Stanley Reversed

Morgan Stanley & Co., Inc. v. Coleman (Parent) Holdings, Inc., No. 4D05-2606 (Fla. Dist. Ct. App. Mar. 21, 2007)

In a 2-1 decision, a Florida state appellate court today reversed the $1.58 billion judgment against Morgan Stanley in the litigation brought by Coleman (Parent) Holdings, Inc.  Judgment was reversed on the grounds that plaintiff failed to prove compensatory damages by not establishing the fraud-free value of the Sunbeam stock on the date of the merger transaction.  Since the decision on that issue was dispositive, the court did not reach the other issues on appeal, including whether the trial court improperly entered a partial default against Morgan Stanley as a sanction for discovery misconduct, and whether the trial court erred in denying Morgan Stanley a fair opportunity to contest and mitigate evidence of litigation misconduct presented during the punitive damages phase of the trial.

Accordingly, the appellate court reversed both the compensatory and punitive damage awards and remanded the case with directions to enter judgment for Morgan Stanley.  Note, the decision is not final until the disposition of a timely filed motion for rehearing.

A copy of the decision is available here.

Court Sustains Objections to Many Requests in Light of Burden Claimed, But Orders Production of Certain Documents in Electronic Format

Bolton v. Sprint/United Mgmt. Co., 2007 WL 756644 (D. Kan. Mar. 8, 2007)

This is an age discrimination case brought by thirteen individual plaintiffs, based upon a corporate reduction-in-force ("RIF") by defendants.  In this decision, the court ruled upon plaintiffs’ motion to compel defendants to produce certain documents, including databases and spreadsheets.  Among other objections, defendants argued that plaintiffs’ persistent demand for information in “native format” and metadata was troubling.  Defendants claimed that the phrase “native format,” as used by plaintiffs, was a misnomer, and in reality it simply meant that “if a document was created in an Excel software program, then it should be produced in Excel format.”  Defendants argued that this type of production implicated issues related to metadata, and that accessing electronic information to produce it in native format may actually destroy information that might otherwise be gleaned from metadata.  In addition, defendants argued that production of metadata would reveal privileged information, and would not be relevant to plaintiffs’ claims.  Finally, defendants argued that it would be difficult and time-consuming to devise a manner of production that would ensure that the information appeared in the same state it existed at the time the document was originally utilized, or to ensure active cells were not changed post-production.  They claimed the burden and risk associated with native production far surpassed the benefits, which were minimal, if any, and which were unarticulated by plaintiffs.
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Court Orders Defendant to Restore One-Fourth of Its Backup Tapes, at Defendant’s Expense, Given Gaps in Production

AAB Joint Venture v. United States, 75 Fed. Cl. 432 (Fed. Cl. 2007)

In this construction litigation involving claims for additional compensation based on differing site conditions, plaintiff moved to compel discovery.  Plaintiff noted that defendant had identified in its discovery responses numerous individuals who were active in the review of the project design, and who were known to have generated email related to the subject matter of the litigation.  However, defendant had produced few if any emails from these individuals, and for the six individuals for whom emails were produced, there were gaps in the production.

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What You Need to Know About Public Records and Open Meetings in Oregon

March 27, 2007

9:00 a.m. to 4:30 p.m.

Hotel Monaco Portland
506 Southwest Washington Street
Portland, OR 97204

K&L Gates partner Helen Bergman Moure will be presenting at this practical seminar which will provide invaluable information on Oregon public meetings laws. The panel will discuss how to efficiently request electronically stored records and how to produce those records if you are acting on behalf of a public body. The materials and presentations offered at this seminar will give you a clear understanding of the requirements for government recordkeeping. This highly informative seminar will also focus on a media perspective of public records. Experienced and well-respected professionals will offer valuable and practical insight and opinions on key issues and concepts.

Click here for more information about attending this seminar.

Defendant to Certify it Produced All Responsive Documents, Where Deposition Testimony Cast Doubt on Counsel’s Diligence in Monitoring Production Efforts

School-Link Techs., Inc. v. Applied Res., Inc., 2007 WL 708213 (D. Kan. Feb. 28, 2007)

In this contract case, plaintiff sought entry of judgment and other sanctions based upon defendant’s failure to implement a litigation hold to preserve relevant documents in the custody of one of its key employees, and its alleged failure to search for and produce responsive documents. Magistrate Judge David J. Waxse granted the motion in part.
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Equivocal Demand Letters Did Not Trigger Duty to Preserve; No Duty To Run System-Wide Key Word Searches

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 2007 WL 684001 (D. Colo. Mar. 2, 2007)

In this trademark infringement case, plaintiff sought various forms of relief for defendants’ alleged discovery violations, including the appointment of a special master (at defendants’ expense) who would be charged with evaluating defendants’ discovery production efforts and, if necessary, directing “completion of full and thorough efforts to locate and produce all documentation in all forms available.” Plaintiff also sought additional depositions on the issue of spoliation and attorneys fees and costs, among other things. The court denied most of the requests, but concluded that a $5,000 monetary sanction was appropriate based upon defendants’ failure to preserve the hard drives of departed employees and failure to confirm the accuracy and completeness of its discovery production.
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Holding that Accessible Data Must be Produced at the Cost of the Producing Party, Court Orders Defendant to Conduct Further Email Search

Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. 2007)

A previous e-discovery order in this case dated July 11, 2006, was summarized here. At that time, the parties had disagreed about whether certain additional emails existed. Magistrate Judge John M. Facciola had explained that the requested emails, “if they exist, could be located in one or more of several places: (1) Peskoff’s NextPoint Management email account; (2) the email accounts of other employees, agents, officers and representatives of the NextPoint entities; (3) the hard drive of Peskoff’s computer or any other depository for NextPoint emails, searchable with key words; (4) other places within Peskoff’s computer, such as its ‘slack space,’ searchable with the help of a computer forensic technologies; and (5) backup tapes of Mintz Levin’s servers.” In the previous order, the court had ordered defendant to submit an affidavit describing in detail the nature and scope of its search for responsive electronically stored information.

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