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

Monthly Archives: November 2008

Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver


Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008) In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents.  Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the… Continue Reading

Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to “Fix” Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed


Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008) In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him.  Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard… Continue Reading

K&L Gates Lawyers to Give Several Presentations in December

Posted in EVENTS

Pennsylvania Bar Institute: e-Discovery December 2, 2008 9:00 AM – 4:30 PM EST Several Locations, Webcast K&L Gates partner David Cohen will speak at two sessions during this event. The first presentation, “ABCs of EDD” will begin at 9:05 a.m. The second presentation, “E-Discovery Ethics” will begin at 3:30 p.m.

Nebraska Recodifies Civil Rules

Posted in NEWS & UPDATES

According to a Revisor’s note: The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of… Continue Reading

Arizona Amends Rules of Family Law Procedure to Address Electronic Discovery

Posted in NEWS & UPDATES

Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues.  The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009.  The amendments include changes to the following rules: Ariz. R. Family Law P. 49      Disclosure Ariz. R…. Continue Reading

In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception


Qualcomm Inc. v. Broadcom Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008) At trial in this case, Broadcom made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications.  Qualcomm’s claimed lack of participation in… Continue Reading

New Additions to List of District Court Rules

Posted in NEWS & UPDATES

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information.  In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery. The following Districts… Continue Reading

Miscommunication about Search Terms Leads to Defendants’ Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff


Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008) In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production.  Plaintiff identified and provided the key words to the defendant. The first key words list… Continue Reading

Court Holds No Expectation of Privacy on Work Computer, Even for “Personal” Information

Posted in NEWS & UPDATES

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008) In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search.  Defendant argued that he, not his employer, owned the computers… Continue Reading

A Busy November: K&L Gates Partners to Speak at Several E-Discovery Events

Posted in EVENTS

Allegheny County Bar Association CLE – T-BOLT: The Best of Legal Technology November 10-11, 2008 David L. Lawrence Convention Center 1000 Fort Duquesne Blvd. Pittsburgh, PA 15222 K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith. David Cohen will be… Continue Reading

Finding Defendants’ Proposed Search Protocol “Fundamentally Misguided,” Court Creates Own and Orders Search of “Any Depository” that May Contain the Information Sought


D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. Oct. 2008) In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery.  Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested. … Continue Reading

K&L Gates Partner Receives E-Discovery Award at Annual Gala

Posted in NEWS & UPDATES

At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award.  David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards.  He is based in the Pittsburgh office and… Continue Reading

Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay “All Reasonable Costs” Related to Discovery Dispute


Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008) In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions.  Specifically, plaintiffs alleged… Continue Reading

Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs


Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008) In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests.  One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement.  Under the agreement,… Continue Reading