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

Monthly Archives: December 2007

Uniform Rules Relating to the Discovery of Electronically Stored Information Approved and Recommended for Enactment


The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states. The NCCUSL describes the Uniform Rules as follows: The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery… Continue Reading

Terminating Sanctions Warranted for Willful Spoliation of Evidence


Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions) The court imposed terminating sanctions and entered default judgment against defendants in this copyright litigation as a result of defendants’ willful spoliation of key evidence.  The court found that defendants had deleted and/or modified relevant TorrentSpy… Continue Reading

Bill Introduced to Enact Evidence Rule 502


On December 11, 2007, Senator Patrick Leahy, Chair of the Senate Judiciary Committee, introduced S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial… Continue Reading

Defendant’s Disposal of Laptop and Untruthful Testimony about Circumstances of Disposal Warrant Adverse Inference Instruction and Relaxed Burden of Proof for Plaintiff


Great Am. Ins. Co. of N.Y. v. Lowry Dev., LLC, 2007 WL 4268776 (S.D. Miss. Nov. 30, 2007) This insurance coverage litigation stemmed from property damage caused by Hurricane Katrina in 2005.  Plaintiff Great American contended that there was a mutual mistake of fact in connection with the formation of the insurance contract, arguing that… Continue Reading

Native Production Warranted Where Alleged Backdating of Documents is at the Heart of Parties’ Dispute


Ryan v. Gifford, 2007 WL 4259557 (Del. Ch. Nov. 30, 2007) In this letter opinion, the court ruled upon a number of discovery disputes, including one relating to the format of production.  Plaintiff sought an order compelling a defendant to respond to documents requests “in native file format, with original metadata, but without a separate… Continue Reading

Florida Supreme Court Denies Review of Decision Reversing $1.58 Billion Judgment Against Morgan Stanley

Posted in NEWS & UPDATES

Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co. Inc., No. SC07-1251 (Fla. Dec. 12, 2007) In a brief order issued on December 12, 2007, the Florida Supreme Court denied Coleman (Parent) Holdings, Inc.’s petition for review of the Florida state appellate court decision which reversed the $1.58 billion against Morgan Stanley.  (View our March… Continue Reading

Good Cause Exists for Production of “Not Reasonably Accessible” Claims Information


W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007) In this case, plaintiffs sued the third-party administrator of their employee medical benefits plans, alleging that it breached its fiduciary duty and the underlying contract by failing to perform its duties in a reasonably prudent manner.  In an earlier motion to compel,… Continue Reading

Defendant Former Employer Entitled to Forensic Inspection of Plaintiff’s Home Computer, at Defendant’s Expense


Orrell v. Motorcarparts of Am., Inc., 2007 WL 4287750 (W.D.N.C. Dec. 5, 2007) In this sexual harassment and gender discrimination case, plaintiff sued her former employer, alleging a hostile work environment, wrongful discharge, and retaliation.  Plaintiff alleged that she was sexually harassed by several male co-workers and/or supervisors, as well as some of the defendant’s… Continue Reading

Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information


Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007) In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes.  Among other things, the judge found: That defendant conducted “an adequate and full search of all ESI formatted documents that… Continue Reading

District Court Sustains Plaintiff’s Objection to Magistrate Judge’s Order Requiring Restoration and Production of Database Prepared in Separate Litigation


Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 247 F.R.D. 567 (D. Minn. 2007) Best Buy sued its landlords for fraud, breach of contract, breach of fiduciary duty and declaratory judgment, claiming that they overcharged insurance and maintenance costs for common areas.  On September 5, 2007, the magistrate judge ruled on a number of… Continue Reading

Sixth Circuit Stays District Court’s Order Allowing Plaintiffs’ Computer Expert, Escorted by United States Marshall, to Inspect and Forensically Image Tennessee State Agencies’ Computer Systems


John B. v. Goetz, No. 07-6373 (6th Cir. Nov. 26, 2007 and Dec. 7, 2007) This case is a class action on behalf of roughly 550,000 children seeking to enforce their rights under federal law to various medical services, including early and periodic screenings for their physical well being, and dental and behavioral health needs. … Continue Reading

Avoiding E-Discovery Disasters

Posted in EVENTS

Tuesday, December 11, 2007 12 p.m. Luncheon & Program Sheraton Station Square 300 West Station Square Drive Pittsburgh, PA 15219 K&L Gates partner David R. Cohen will discuss how to avoid the pitfalls in litigation surrounding e-discovery requests at an upcoming program hosted by the Pittsburgh Chapter of Risk and Insurance Management Society, Inc. (“RIMS”). … Continue Reading

Court Sets Protocol for Production of ESI by Non-Party Individual


In re Rule 45 Subpoena Issued to Robert K. Kochan, 2007 WL 4208555 (E.D.N.C. Nov. 26, 2007) In this decision, the district court adopted the Memorandum and Recommendation of Magistrate Judge James E. Gates which resolved a dispute centered around a subpoena issued in a case pending in the Southern District of Mississippi.  Plaintiffs in… Continue Reading

Sanctions Warranted for Failure to Comply with Court’s Production Order and Failure to Implement Litigation Hold


Bd. of Regents of Univ. of Neb. v. BASF Corp., 2007 WL 3342423 (D. Neb. Nov. 5, 2007) In this patent and licensing litigation, the court had previously ordered plaintiff to produce “development documents” related to the project at issue in the litigation.  According to defendant, plaintiff produced 1,737 pages of documents by the order’s… Continue Reading