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

Monthly Archives: August 2008

Avoiding Question of Whether Third-Party’s Compliance with Subpoena Might Violate Stored Communications Act, Court Instructs Plaintiff to Serve Rule 34 Request for Production Instead

Posted in CASE SUMMARIES

Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008) In an earlier decision in this case, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of text messages.  The court found that plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of… Continue Reading

Magistrate Judge Imposes Monetary Sanctions and Recommends Adverse Inference Instruction, but not Dismissal, for “Reckless and Egregious Discovery Misconduct”

Posted in CASE SUMMARIES

Keithley v. Home Store.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008) In this patent infringement case, plaintiffs sought terminating, evidentiary and monetary sanctions based upon defendants’ spoliation of evidence.  Plaintiffs argued that defendants had destroyed three types of evidence:  (1) source code; (2) early architectural, design and implementation documents; and (3) reports.  Plaintiffs… Continue Reading

E-Discovery Amendments to California’s Civil Discovery Act Now Awaiting Governor’s Signature

Posted in NEWS & UPDATES

Assembly Bill 926 (Evans):  Passed the Senate July 10, 2008; Passed the Assembly August 7, 2008 The amendments included in AB 926 closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.  Among other things, the amendments: – Establish procedures for a person to obtain discovery of electronically stored information,… Continue Reading

Qualcomm’s Appeal and Sanctioned Attorneys’ Cross-Appeals Dismissed by Federal Circuit Court of Appeals

Posted in NEWS & UPDATES

Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California; No. 2008-1348, 1381 & 1382, United States Court of Appeals for the Federal Circuit In May 2008, Qualcomm filed an appeal in the U.S. Court of Appeals for the Federal Circuit regarding Judge Rudi M. Brewster’s March… Continue Reading

E-Discovery (Re)sources Abound

Posted in NEWS & UPDATES

By K&L Gates attorneys Todd L. Nunn and Trudy D. Tessaro This article appears in the August 2008 edition of the King County Bar Bulletin, and begins: Want to understand more about e-discovery, other than that the “e” stands for “excitement?”  Need a little light summer reading?  Well, you are in luck.  Never before have there… Continue Reading

Indian Legal Services Company Moves to Dismiss Anti-Outsourcing Lawsuit

Posted in NEWS & UPDATES

Newman McIntosh & Hennessy v. Bush, Civ. No. 08-00787 (CKK) (D.D.C.) This lawsuit seeks declaratory and injunctive relief in order to gain certainty about whether the electronic transmission of data from the United States to a foreign legal services provider waives Fourth Amendment protection with respect to the data that is electronically transmitted.  See our… Continue Reading

Court Denies Spoliation Sanctions for Destruction of ESI Pursuant to Document Retention Policy, Citing FRCP 37(e) Safe Harbor Provision

Posted in CASE SUMMARIES

Gippetti v. UPS, Inc., 2008 WL 3264483 (N.D. Cal. Aug. 6, 2008) In this case, plaintiff alleged that UPS fired him because of his age (reportedly, he was about 44 years old at the time).  UPS contended that Gippetti’s termination had nothing to do with his age.  It maintained that he was fired for “stealing… Continue Reading

No Spoliation Found Where Expert Drafted His Report on Computer, Without Saving or Preserving Progressive Iterations

Posted in CASE SUMMARIES

In re Teleglobe Communications Corp., 2008 WL 3198875 (Bankr. D. Del. Aug. 7, 2008) In this lengthy opinion addressing a variety of issues, the bankruptcy judge denied defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions.  The court rejected defendants’ argument… Continue Reading

Magistrate Judge “Clearly Erred” by Analyzing Cost-Shifting Dispute for Paper Production under Seven-Factor Zubulake Test

Posted in CASE SUMMARIES

Tierno v. Rite Aid Corp., 2008 WL 3287035 (N.D. Cal. July 31, 2008) In this wage and hour employment case, plaintiff sought documents about class members’ employment and salary history, terminations, performance evaluations, discipline, certain communications, and personnel files.  Rite Aid had demanded that plaintiff either travel to its various district office locations throughout California… Continue Reading

Production of ESI in Paper Format Does Not Comply with Rule 34 Option to Produce ESI in Reasonably Usable Form; Court Orders Re-Production of Certain ESI in Native Format

Posted in CASE SUMMARIES

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) In this wrongful termination case, plaintiff moved for an order compelling defendants to, among other things, provide complete information on defendants’ document retention policy and how such policy may have affected ESI responsive to certain… Continue Reading

Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Posted in CASE SUMMARIES

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008) In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant… Continue Reading

Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)

Posted in CASE SUMMARIES

Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008) In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez’s 136 or more requests for production.  Earthwise had produced “55,000 emails, six boxes of documents consisting of approximately 8,700 pages… Continue Reading