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

Monthly Archives: April 2007

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. … Continue Reading

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… Continue Reading

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… Continue Reading

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… Continue Reading

DRI Electronic Discovery Seminar Begins Today

Posted in EVENTS

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. … Continue Reading

E-Discovery Sanctions: A Continuing Trend

Posted in NEWS & UPDATES

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… Continue Reading

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

Posted in NEWS & UPDATES

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… Continue Reading

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

Posted in NEWS & UPDATES

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… Continue Reading

Electronic Records Management and E-Discovery Forum

Posted in EVENTS

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,… Continue Reading

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… Continue Reading

Plaintiff’s Disposal of “Crashed” Home Computer Warrants Adverse Inference Instruction


Teague v. Target Corp., 2007 WL 1041191 (W.D.N.C. Apr. 4, 2007) In this employment litigation, defendant had asserted as an affirmative defense plaintiff’s failure to mitigate her damages.  During discovery, it was revealed that plaintiff owned a home computer from December 1995 until August 2004, which plaintiff had used to conduct her entire on-line job… Continue Reading

JOLT Releases Annual Survey of E-Discovery

Posted in NEWS & UPDATES

The Richmond Journal of Law & Technology (JOLT) released its third Annual Survey of Electronic Discovery this week.  The issue features articles on a number of important issues relating to the new Federal Rules of Civil Procedure, including managing preservation obligations, accessible vs. inaccessable data, and creative approaches to cost-shifting.  Thanks to Jon Player, editor-in-chief, for bringing… Continue Reading

No Sanctions for Testifying Experts’ Failure to Retain Drafts or Preserve Email to and from Counsel


Univ. of Pittsburgh v. Townsend, 2007 WL 1002317 (E.D. Tenn. Mar. 30, 2007) In this case, the University of Pittsburgh alleged that defendants misappropriated the University’s rights and interests in valuable medical scanning technology that the University alleged was developed collaboratively at its campus over the course of several years.  In addition to Daubert motions,… Continue Reading

Defendant to Produce Email from Backup Tapes at Its Own Expense; Cost-Shifting May Be Ordered Later


In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. April 2, 2007) In this securities class action, defendants resisted lead plaintiff’s motion to compel production of email and other non-privileged documents.  Defendants argued that restoring the backup tapes and searches involved would be extraordinarily burdensome and costly, and that such costs should be… Continue Reading

Evidentiary Hearing Required Before Court Can Order State Agency to Produce Email from Backup Tapes


Georgia Dept. of Agric. v. Griffin Ind., 2007 WL 805795 (Ga. Ct. App. Mar. 19, 2007) In this case, Griffin Industries had sought records from the Georgia Department of Agriculture relating to its facilities’ emissions and odor issues, including relevant emails.  The Department produced documents, but advised that it did not “archive” its emails.  It stated that the… Continue Reading