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

Monthly Archives: September 2008

Reserving Judgment on Spoliation Pending Supplemental Briefing, Court Demands Answers to Eight Specific Questions


Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008) In this breach of contract litigation over allegedly non-conforming goods, Glasforms moved for sanctions against third-party defendant Taishan Fiberglass for the spoliation and destruction of documents.  Taishan had previously been ordered to produce a knowledgeable and fully… Continue Reading

State Court Rejects Appeal of Discovery Order Requiring Production of “Broken” Computers


Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 2008 Pa. Super. 222 (Pa. Super. Ct. 2008) In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants.  When defendants failed… Continue Reading

Court Orders Defendant to Re-Produce Documents Previously Produced as TIFF Images, Setting Out Three Format of Production Options


Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions.  Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF… Continue Reading

President Bush Signs into Law S. 2450, a Bill Adding New Rule 502 to the Federal Rules of Evidence


On Friday, September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection.  S. 2450 is identical to proposed Evidence Rule 502, as approved by the Judicial Conference… Continue Reading

Adverse Inference Instruction Warranted Where Spoliation Claim Supported by Credible Arguments, Witnesses and Evidence


Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008) In this case, plaintiffs claimed that they were fraudulently induced to invest in defendant’s catering businesses, and sought to inspect defendants’ business records.  Plaintiffs moved for an extension of time to complete their inspection, and also requested sanctions.  They claimed that defendants had engaged in… Continue Reading

Briefing Schedule Set for Outstanding Discovery Motions in Qualcomm v. Broadcom Litigation

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 On September 16, 2008, Magistrate Judge Barbara L. Major set a briefing schedule for the five pending discovery motions filed by the parties, requiring any oppositions to be filed on or before October 3, and any replies… Continue Reading

Adverse Inference and Other Sanctions Warranted for Plaintiff’s Failure to Produce Damaging Emails that were Eventually Produced by Third Party


Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008) In this patent infringement litigation, BNY sought sanctions on the grounds that Metrokane failed to produce a series of emails said to be highly damaging to Metrokane’s case.  BNY argued that the recent discovery of the existence of these emails through production… Continue Reading

Failure to Preserve Key Player’s Email and Interview Transcripts Warrants Adverse Inference Instruction, but not Default Judgment


Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal. Sept. 2, 2008) In this class action securities litigation, plaintiffs sought sanctions based on alleged evidence spoliation by defendants.  Plaintiffs moved for terminating sanctions or, in the alternative, for lesser sanctions in the form of adverse inference instructions and an order precluding defendants… Continue Reading

House Passes Proposed Evidence Rule 502


On September 8, 2008, the House of Representatives passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The Senate had earlier approved the bill by unanimous consent on February 27, 2008.  Having passed in identical form in both chambers, the bill now awaits the signature of… Continue Reading

Defendant to Make “All Possible Efforts” to Produce Email from Personal Yahoo! Account; Failure to Timely Identify Account Warrants Sanctions


Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008) In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant’s personal Yahoo! account.  Plaintiff contended that it only recently learned of the account, and that defendant should have disclosed… Continue Reading

Defendant’s “Brazen Destruction of Evidence” Warrants Default Judgment


Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008) In this copyright infringement litigation, seven major recording companies alleged that defendant Howell had used the KaZaA file-sharing program to download their sound recordings and distribute them to other users of the network.  Howell had previously resisted plaintiffs’ efforts to conduct a… Continue Reading

K&L Gates Partner Martha J. Dawson to Deliver E-Discovery Presentation in Berlin

Posted in EVENTS

K&L Gates Compliance Talks E-Discovery Analysis and Technology (e-DAT) Group:  Tool for Due Diligence, Compliance and Investigations Thursday, September 18, 2008, 5:30-6:30 pm K&L Gates LLP Markgrafenstraße 42, 10117 Berlin   Presentation by Martha J. Dawson, K&L Gates, Seattle With an Introduction by Dr. Wilhlem Hartung, K&L Gates, Berlin  

The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible


July 2008.  Available for free download here. From the Preface: This Sedona Conference® Commentary focuses on the decision making process relating to the preservation of sources of electronically stored information that may contain discoverable information that is “not reasonably accessible.”  The “reasonable accessibility” distinction – introduced by the 2006 Federal E-Discovery Amendments as part of the… Continue Reading