Archive: April 2007

1
Court Defers Ruling on Motion to Compel and Allows Rule 30(b)(6) Deposition of IT Designee Regarding Defendant’s Email Deletion Policy and Procedures for Retrieving Deleted Emails
2
Eight Circuit Affirms Trial Court’s Denial of Spoliation Sanctions Where No “Desire to Suppress the Truth” and No Prejudice Shown
3
Court Orders Production of All Electronic Documents, Including Archived or Backup Emails and Electronic Files, for Key Players
4
Destruction of Hard Drive by Defendant’s Spouse Warrants Adverse Inference Instruction
5
DRI Electronic Discovery Seminar Begins Today
6
E-Discovery Sanctions: A Continuing Trend
7
Oracle Case E-Discovery Fight Heats Up; Dispute centers on author’s audio files of interview with CEO
8
Managing Your Paper Trail: Do You Know Where Your Files Are?
9
Electronic Records Management and E-Discovery Forum
10
Evidence Rules Advisory Committee Meets to Discuss Proposed ER 502 Today

Court Defers Ruling on Motion to Compel and Allows Rule 30(b)(6) Deposition of IT Designee Regarding Defendant’s Email Deletion Policy and Procedures for Retrieving Deleted Emails

Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007)

In this employment discrimination case, plaintiff sought the production of email of seven Xpedx employees during various time periods.  Plaintiff contended that defendant implemented a new email deletion policy in 2003, under which emails were deleted within 90 days of creation, unless designated for retention.  Plaintiff asserted that, under defendant’s policy, an email "that is automatically deleted by the system can not be restored except with the expressed consent of a member of the company’s legal or tax departments."  Plaintiff further contended that defendant’s archive system, "legal hold" folders, and defendant’s permanent back-up computer system may contain copies of the requested emails.  Thus, plaintiff sought permission to take the deposition of defendant’s corporate representative for information technology regarding defendant’s email deletion policy and procedures for retrieving deleted emails.  Plaintiff argued that this would allow the parties to determine the existence of deleted emails and if defendant destroyed any evidence relating to plaintiff’s claims.
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Eight Circuit Affirms Trial Court’s Denial of Spoliation Sanctions Where No “Desire to Suppress the Truth” and No Prejudice Shown

Greyhound Lines, Inc. v. Wade, 2007 WL 1189451 (8th Cir. Apr. 24, 2007)

In this case, Greyhound Lines, Inc. sued Robert Wade and Archway Cookies, LLC (collectively Archway).  In August 2000, an Archway truck driven by Wade rear-ended a Greyhound bus on Interstate 80 in Nebraska.  After a bench trial, the district court apportioned fault at 85 percent to Archway and 15 percent to Greyhound.  Archway appealed, asserting, among other things, that the court erred in refusing to impose sanctions for alleged spoliation of electronic data. Read More

Court Orders Production of All Electronic Documents, Including Archived or Backup Emails and Electronic Files, for Key Players

Metro Wastewater Reclamation Dist. v. Alfa Laval, Inc., 2007 WL 1160012 (D. Colo. Apr. 19, 2007)

In this brief order, the court granted defendant’s motion to compel and ordered plaintiff to produce, among other things, certain plant data “in electronic format” and “all electronic documents, including the archived or back-up emails and electronic files for the Plaintiff’s personnel involved with the Project who are specifically identified in [defendant’s] Requests for Production related to the processes and operation of the Plant.”

The case involved claims for breach of a procurement contract for failure to meet the guaranteed specifications, and counter-claims seeking declaratory judgment relief related the contract.  Plaintiff had argued that the requested discovery was irrelevant, overly broad, overly burdensome, and costly.  The court’s analysis was short — it simply found that the requested discovery as outlined in the motion was relevant to the issues pending before the court and was discoverable under Fed. R. Civ. P. 26.

Destruction of Hard Drive by Defendant’s Spouse Warrants Adverse Inference Instruction

World Courier v. Barone, 2007 WL 1119196 (N.D. Cal. Apr. 16, 2007)

In this misappropriation of trade secrets case, plaintiff moved for sanctions for spoliation of evidence based upon the admitted destruction of a hard drive containing a copy of plaintiff’s data by defendant Barone’s husband, Jay Barone.  Plaintiff sought an adverse inference instruction and monetary sanctions consisting of compensation for the time and expense involved in the forensic examination of computer files, the time and costs associated with developing deposition testimony and document discovery, and attorney’s fees associated with litigating the motion.  The court granted in part and deferred in part the motion.

The court rejected defendants’ argument that they could not be sanctioned because the spoliator, Mr. Barone, was not a party to the action.  The court stated that the argument lacked merit because it overlooked a party’s affirmative duty to preserve evidence.  The court stated the duty to preserve extends to evidence not directly within the party’s custody or control so long as the party has access to or indirect control over such evidence.  The court found:

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DRI Electronic Discovery Seminar Begins Today

April 19 – 20, 2007
Renaissance Washington, D.C. Hotel
999 Ninth Street NW
Washington, D.C.

K&L Gates partner Todd L. Nunn and William B. Dodero of Bayer HealthCare LLC, West Haven, Connecticut, will be making a presentation entitled:  "What about Problematic Forms of ESI: IM, Digital Voicemails, VoIP and Dynamic Databases" tomorrow, April 20, 2007, in Washington, D.C.  The presentation is just one of many occurring during the two-day DRI Electronic Discovery Seminar that begins today. 

DRI’s Electronic Discovery Seminar features several of the most prominent federal court judges and magistrate judges in electronic discovery jurisprudence.  The program also includes corporate counsel and outside counsel with national reputations for defending cases involving complex electronic discovery issues and disputes, and it is structured to address the most important issues in this rapidly developing field in a manner that emphasizes the practical over the theoretical.  The timeliness of the conference—nearly five months after the implementation of the electronic discovery amendments to the Federal Rules of Civil Procedure—provides you with the opportunity to learn from the frontline experiences of the judiciary, corporate clients and leading litigators how to optimize your chances for victory in the new era of discovery under the amended federal rules.

For more information, click here.

E-Discovery Sanctions: A Continuing Trend

By K&L Gates attorneys Thomas J. Smith and Michael J. Crossey, Jr.

It is now black-letter law that electronically stored information (“ESI” for short) is discoverable if relevant or likely to lead to relevant evidence.  Indeed, the revisions to the Federal Rules of Civil Procedure (“FRCP”) that went into effect on December 1, 2006 addressing the discovery of ESI confirm that the 21st Century is witnessing the transformation of traditional trial practice to accommodate ESI in all phases of litigation, from initial discovery and production through trial.  Given the vast amount of electronic information retained by most companies, the complex task of preserving, retrieving, and producing discoverable ESI and the prospect of extremely harsh sanctions for discovery missteps, the discovery of electronically stored information, or “e-discovery,” has become a major concern and potential liability for all companies.

Click here to read the entire article.

Oracle Case E-Discovery Fight Heats Up; Dispute centers on author’s audio files of interview with CEO

Written by Pamela A. MacLean and posted on The National Law Journal, April 18, 2007:

"A major fight over alleged spoliation of evidence and the potential for sanctions over electronic discovery may be shaping up in San Francisco federal court for the Oracle Corp. securities class action.

The dispute centers on a British author’s audio files of interviews with Oracle CEO Larry Ellison for "Softwar: An Intimate Portrait of Larry Ellison and Oracle" that now seem to have vanished. The digital recordings were made during the very period of class claims in In re Oracle Corp. Securities Litigation, No. C01-988MJJ."

Click here to read the entire story on the NLJ website.

Managing Your Paper Trail: Do You Know Where Your Files Are?

K&L Gates partner Todd Reuter penned the following article on document retention for the March 2007 issue of Spokane Business Catalyst magazine:

"Developments in communications technologies promised to free us from the printed word, but the paperless office never materialized. In fact, both paper and electronic records have increased, creating backlogged inboxes both on your computer and on your desk. And, if you’re like most people, that current set of documents likely grows exponentially every day

From a legal perspective, this might be a problem. The more documents you have, the more you will need to produce in “discovery” should you find yourself in the middle of a lawsuit."

Click here to read the entire article.

Electronic Records Management and E-Discovery Forum

April 16-17, 2007
Four Seasons Hotel
Vancouver, B.C.

K&L Gates partner Helen Bergman Moure presented at this recent event, offering valuable insight into the current state of e-discovery in the United States, including the recent amendments to the Federal Rules of Civil Procedure, the impact of recent notable cases on document retention standards and practices, and current case law developments.

“This conference is designed to help you contain risk linked to electronic records management and bring you up to date on how laws and procedures are changing to deal with this new reality in both a business and litigation context.  Some highlights of this timely event are:

• Planning an eRecords strategy to ensure records meet new legal standards
• Meeting your obligations in regards to privacy and FOIPPA access requests
• Best records management policies and procedures that are also cost efficient
• Emerging US trends that may affect Canadian standards and litigation
• Obtain a checklist of current solutions for data retention policies
• Learn tips from organizations that have implemented eRecord management systems to save time and money and avoid risk
• Essential insights on avoiding spoliation and related sanctions

For more information about the conference, click here.

Evidence Rules Advisory Committee Meets to Discuss Proposed ER 502 Today

The Advisory Committee on the Federal Rules of Evidence is meeting today and tomorrow in San Diego to discuss, among other things, the proposed Evidence Rule 502 on waiver of attorney-client privilege and work product.  The Committee must determine whether to recommend proposed Rule 502 to the Standing Committee for ultimate adoption by Congress.  Portions of the Committee’s Agenda Book for the April 12 and 13, 2007 meeting relating to proposed Rule 502 are available here:

Advisory Committee on Evidence Rules, Minutes of the Meeting of November 16, 2006 (not yet approved)

Memorandum to Advisory Committee on Evidence Rules dated March 15, 2007, Re: Proposed Rule 502: Possible Changes to Rule as Released for Public Comment

This memorandum analyzes all the colorable suggestions for change to the rule as issued for public comment.

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