Archive: August 2007

1
Court Orders Solicitation of Bids From Forensic Computer Technicians to Assess Whether the Search and Restoration of Additional Data From Defendant’s Company Computers is Justified Under FRCP 26(b)(2)(C)
2
Court Allows Summoned Attorneys to Be Represented by Counsel, and Grants Extension for Hearing on Order to Show Cause Why Sanctions Should Not Be Imposed
3
Information Temporarily Stored in Computer’s Random Access Memory (“RAM”) Constitutes “Electronically Stored Information” under FRCP 34(a)
4
Event: Scenes From an E-Discovery Case
5
ULC Approves New Uniform E-Discovery Rules for States
6
Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information
7
Error by FTC Reveals Whole Foods’ Trade Secrets
8
Fourteen Attorneys to Appear and Show Cause Why Sanctions Should Not Be Imposed for “Organized Program of Litigation Misconduct and Concealment”
9
Spoliation Sanctions Not Warranted for Failure to Preserve Temporary Cache Files
10
Rule 37(f) Safe Harbor Provision Requires a Routine System in Place and Some Affirmative Action by Party to Prevent System from Destroying or Altering Information

Court Orders Solicitation of Bids From Forensic Computer Technicians to Assess Whether the Search and Restoration of Additional Data From Defendant’s Company Computers is Justified Under FRCP 26(b)(2)(C)

Peskoff v. Faber, 244 F.R.D. 54 (D.D.C. 2007)

In this opinion, United States Magistrate Judge John M. Facciola continued attempts to resolve ongoing discovery issues in Plaintiff Jonathan Peskoff’s suit to recover damages for financial injury resulting from Defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP.  Peskoff and Faber were managing members of NextPoint GP, LLC ("NextPoint "), the general partner of the venture capital fund.  Peskoff left NextPoint in January 2004 and filed an action against Faber shortly after.

In discovery, Peskoff sought documents, including email from his time at NextPoint Management. Faber’s initial productions of email and other documents did not include any emails that Peskoff received or authored between mid-2001 and mid-2003.  In a previous ruling centering on the missing data, the court noted that the unresolved issue was whether such emails still existed and could be located, and whether the efforts made to date to locate them had been adequate.  The court had ordered the Defendant to conduct additional searches for any email involving Peskoff, and to submit a sworn statement and provide testimony at an evidentiary hearing on the nature and adequacy of such searches.  (For additional background information, click on the links to see summaries of two previous orders in this case related to this issue, entered July 2006 and February 2007).

In this opinion, the court noted that Faber had failed to appear at the subsequent evidentiary hearing, and that this failure to comply with the court’s previous order would be construed against him.  The court then relied on the testimony made by others at the hearing, and on other available information, and concluded that the production to date raised many questions regarding its completion and the sufficiency of the searches performed.  The court also concluded that any additional searches would require additional resources beyond the tools available to NextPoint.

Read More

Court Allows Summoned Attorneys to Be Represented by Counsel, and Grants Extension for Hearing on Order to Show Cause Why Sanctions Should Not Be Imposed

Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California

The lawyers who represented Qualcomm in this unsuccessful patent litigation, who on August 13, 2007 were ordered to appear today to show cause (“OSC”) why sanctions should not be imposed against them for failure to comply with the Court’s orders, will not be appearing in court today after all.  Magistrate Judge Barbara Lynn Major has granted the lawyers’ applications to extend the August 22, 2007 filing date for declarations regarding the imposition of sanctions and the August 29, 2007 OSC hearing date.  In their applications, the lawyers acknowledged that the “OSC raises complex and very serious issues that potentially impact the legal careers of the lawyers who are the subject of the OSC,” and explained that additional time was needed to get the lawyers’ newly-hired attorneys up to speed on the record and the issues, and adequately prepare for the OSC.  Finding that good cause was shown, the Court granted the applications and extended the deadline for filing declarations to Friday, September 21, 2007, and moved the hearing date to Friday, October 12, 2007 at 9:30 a.m.

In related rulings, Magistrate Judge Major agreed to allow the lawyers to be represented by their own counsel for purposes of responding to the OSC.  The HellerErhman lawyers will be represented by Kirby Noonan Lance & Hoge LLP of San Diego, and the lawyers from Day Casebeer Madrid & Batchelder will be represented by Shartsis Friese LLP of San Francisco. 

As noted in our August 13, 2007 post, the Order to Show Cause was issued days after District Court Judge Rudi M. Brewster entered a 54-page Order on Remedy for Finding of Waiver.  There, the District Judge found “by clear and convincing evidence that Qualcomm[’s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.”  Among other things, the Court highlighted Qualcomm’s production of over 200,000 pages of highly relevant emails and electronic documents four months post-trial.

Read More

Information Temporarily Stored in Computer’s Random Access Memory (“RAM”) Constitutes “Electronically Stored Information” under FRCP 34(a)

Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007)

In this opinion, the district court denied defendants’ motion for review of a prior discovery order that required defendants to begin preserving and subsequently produce certain data held in the random access memory (RAM) of defendants’ computer servers.  The court noted that, at the heart of defendants’ motion for review was a question of first impression:  Is the information held in a computer’s random access memory (RAM) "electronically stored information" under Federal Rule of Civil Procedure 34?  The court concluded that it is: 

Defendants and amici seek to engraft on the definition of “stored” an additional requirement, that the information be not just stored, but stored “for later retrieval.”  They argue that “electronically stored information” cannot include information held in RAM because the period of storage, which may be as much as six hours, is too temporary.  The Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM.  The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.

Read More

Event: Scenes From an E-Discovery Case

Los Angeles: Wednesday, September 26, 2007
San Francisco: Thursday, September 27, 2007

This interactive program is designed to educate in-house counsel, executives, paralegals, and IT professionals about e-discovery, the new Federal Rules of Civil Procedure, and steps that they should be taking now to achieve litigation readiness and reduce liability exposure. Through a series of videotaped vignettes, participants can see what to do and what not to do with regard to electronic records in litigation. A series of 5-10 minute vignettes provide snapshots throughout the life of a case, from first filing and service of a complaint all the way through trial. The scenarios and mistakes made in the sample case were drawn from real life examples.

The majority of the program is presented in a workshop format that invites comments and questions from the audience together with expert commentary from our panelists from CGOC, PSS Systems and K&L Gates. The final segment of the program is dedicated to outlining steps and tools available for companies to help protect themselves from e-discovery risks and costs.

Read More

ULC Approves New Uniform E-Discovery Rules for States

From a release posted by the Uniform Law Commission on August 2:

"A new act approved today by a national law group addresses the growing concern over the rules of discovery that courts must follow to access electronic information in civil cases.  The Uniform Rules Relating to Discovery of Electronically Stored Information was approved today by the Uniform Law Commission (ULC) at its 116th Annual Meeting in Pasadena, California.

The primary purpose of the new uniform rules is to provide states with up-to-date rules for the discovery of electronic documents in civil cases. "

Read the entire press release here.

Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information

In August 2006, the Conference of Chief Justices approved the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information as a reference tool for state trial court judges faced by a dispute over e-discovery.

These Guidelines are intended to help in identifying the issues and determining the decision- making factors to be applied in the circumstances presented in a specific case. They should not be treated as model rules or universally applicable standards. They have been crafted only to offer guidance to those faced with addressing the practical problems that the digital age has created. The Conference of Chief Justices recognizes that the Guidelines will become part of the continuing dialogue concerning how best to ensure the fair, efficient, and effective administration of justice as technology changes. They should be considered along with the other resources such as the newly revised provisions on discovery in the Federal Rules of Civil Procedure and the most recent edition of the American Bar Association Standards Relating to Discovery. Although the Guidelines acknowledge the benefits of uniformity and are largely consistent with the revised Federal Rules, they also recognize that the final determination of what procedural and evidentiary rules should govern questions in state court proceedings (such as when inadvertent disclosures waive the attorney-client privilege) are the responsibility of each state, based upon its legal tradition, experience, and process.

Error by FTC Reveals Whole Foods’ Trade Secrets

By Christopher S. Rugaber from the Associated Press via Washingtonpost.com:

"Federal regulators inadvertently released dozens of trade secrets in public court documents yesterday as they tried to block Whole Foods Market’s $565 million purchase of Wild Oats Markets.

The Federal Trade Commission documents revealed that Whole Foods plans to close 30 or more Wild Oats stores in competitive markets, a move that the company thinks would nearly double revenue for some Whole Foods stores. "

Click here to read the entire story on Washingtonpost.com.  Free subscription required.

Fourteen Attorneys to Appear and Show Cause Why Sanctions Should Not Be Imposed for “Organized Program of Litigation Misconduct and Concealment”

Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B(BLM) (S.D. Cal. Aug. 13, 2007) (Order to Show Cause Why Sanctions Should Not Be Imposed)

Today, Magistrate Judge Barbara Lynn Major, United States District Court for the Southern District of California, signed and entered an Order to Show Cause directing 14 attorneys, “and any and all other attorneys who signed discovery responses, signed pleadings and pre-trial motions, and/or appeared at trial on behalf of Qualcomm,” to appear in her courtroom on August 29, 2007 at 9:30 a.m. to show cause why sanctions should not be imposed against them for failure to comply with the Court’s orders.  The Order provides that the attorneys may also file declarations regarding the imposition of sanctions on or before August 22, 2007.

The Order to Show Cause comes on the heels of the 54-page Order on Remedy for Finding of Waiver, entered August 6, 2007, by District Court Judge Rudi M. Brewster.  There, the District Judge found “by clear and convincing evidence that Qualcomm[’s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial before new counsel took over lead role in the case on April 27, 2007.”  Among other things, the Court highlighted Qualcomm’s production of over 200,000 pages of highly relevant emails and electronic documents four months post-trial.

A copy of today’s Order to Show Cause is available here.

A copy of Judge Rudi M. Brewster’s August 6, 2007 Order on Remedy for Finding of Waiver is available here.

A copy of Judge Rudi M. Brewster’s August 6, 2007 Order Granting Broadcom Corporation’s Motion for Exceptional Case Finding and for an Award of Attorneys’ Fees (35 U.S.C. § 285) is available here.

Spoliation Sanctions Not Warranted for Failure to Preserve Temporary Cache Files

Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 2007 WL 2085358 (E.D. Pa. July 20, 2007)

Healthcare Advocates was the plaintiff in an earlier lawsuit that asserted claims for trademark infringement and misappropriation of trade secrets against a competitor.  The Harding firm represented the defendants in that lawsuit, which was dismissed on summary judgment.  This civil action arose out of events that occurred in the pre-discovery phase of the underlying litigation.

After receiving the complaint, the Harding firm investigated the facts behind the allegations.  Employees of the Harding firm accessed a website operated by the Internet Archive (www.archive.org), and viewed archived screenshots of Healthcare Advocates’ website via a tool contained on Internet Archive’s website called the Wayback Machine.  The Wayback Machine allowed the Harding firm to see what Healthcare Advocates’ public website looked like prior to the date the complaint was filed in the underlying litigation.  Viewing the content that Healthcare Advocates had included on its public website in the past was very useful to the Harding firm in assessing the merits of the claims brought against their clients.  The Harding firm printed copies of each archived screenshot of Healthcare Advocates’ public website that they viewed via the Wayback Machine, and used the images used during the course of the underlying litigation.  However, the Harding firm did not actively save any of the screenshots they viewed onto their computer hard drives.

Healthcare Advocates later sued the Harding firm, claiming among other things that the firm had infringed on its copyright rights by viewing and printing copies of the archived images of the Healthcare Advocates’ web pages, by unknowingly saving copies of these web pages in temporary files known as caches, and by distributing the images to their co-counsel in the underlying litigation.  It further alleged that the Harding firm was guilty of “hacking.”

In this opinion, the court granted defendant’s motion for summary judgment, finding that the Harding firm’s infringing use was excusable under the fair use doctrine.  The court further rejected Healthcare Advocates’ request for spoliation sanctions based on defendant’s failure to preserve the temporary cache files.

Read More

Rule 37(f) Safe Harbor Provision Requires a Routine System in Place and Some Affirmative Action by Party to Prevent System from Destroying or Altering Information

Doe v. Norwalk Community College, 2007 WL 2066497 (D. Conn. July 16, 2007)

In this case, plaintiff Jane Doe sued Norwalk Community College ("NCC") and Ronald Masi claiming she was sexually assaulted by Masi, a former professor at the college.  Doe filed her complaint in November 2004, and in March 2006, Doe moved to compel the inspection of certain electronic records possessed by NCC.  The court granted the motion in July 2006, and permitted plaintiff’s expert to inspect certain NCC computers.  Based upon her expert’s findings, Doe moved for sanctions, seeking an adverse inference with regard to electronic files which she claimed the defendants destroyed.

Specifically, Doe claimed that the hard drives of key witnesses had been scrubbed or completely wiped of data.  Further, her expert found inconsistencies in the mailboxes of four individuals that suggested to him that data had been altered, destroyed or filtered.  For example, one witness’s PST file contained no Deleted Items and only one Sent Item and the Inbox and Sent Items contained data starting August 2004, even though other activity was present starting in 2002.  In addition, Doe presented evidence that the retention policy issued by the State Library, which provided for a two-year retention with respect to electronic correspondence, governed NCC, and that this policy was not followed with respect to the hard drives of the computers of faculty members who left the college. Read More

Copyright © 2015, K&L Gates LLP. All Rights Reserved.