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

Monthly Archives: February 2009

Court Considers Zubulake Factors, Denies Defendant’s Motion to Shift Cost of OCR Processing


Proctor & Gamble Co. v. S.C. Johnson & Son, Inc., 2009 WL 440543 (E.D. Tex. Feb 19, 2009) In this case, following the court’s decision that all documents were to be produced electronically in TIFF format with Optical Character Recognition (“OCR”), defendant asserted that the cost of processing the documents should be shifted to the… Continue Reading

Plaintiff Fails to Respond Promptly to Notice of Inadvertent Production, Court Orders Privilege Waived


Brookdale Univ. Hosp. & Med. Ctr., Inc. v. Health Ins. Plan of Greater N.Y., 2009 WL 393644 (E.D.N.Y. Feb. 13, 2009) In this case, the court was asked to reconsider its prior order compelling defendants to return privileged documents inadvertently produced by the plaintiff.  The court declined to overturn its ruling regarding documents specifically identified by the… Continue Reading

Key Lawmaker Moves to Protect Privilege and Work-Product Doctrine

Posted in NEWS & UPDATES

The National Law Journal, Feb. 20, 2009 By Marcia Coyle Despite reassuring statements by Attorney General Eric Holder on the issue of attorney-client privilege waivers in corporate investigations, a key senator is moving forward with legislation to put protection for the privilege and the work-product doctrine into law and throughout government. Sen. Arlen Specter, R-Pa.,… Continue Reading

Court Dismisses Plaintiffs’ Claims as Sanction for Discarding Laptop, Orders Adverse Inference Instruction as to Defendants’ Cross-Claims


Kvitka v. Puffin Co., LLC, 2009 WL 385582 (M.D. Pa. Feb. 13, 2009) Finding plaintiff intentionally discarded her laptop despite a duty to preserve it, the court ordered dismissal of her claims and an adverse inference instruction as to defendants’ cross-claims. After years of advertising in defendants’ magazine, plaintiff Kvitka, an antique doll dealer, received… Continue Reading

Bill proposes ISPs, Wi-Fi keep logs for police

Posted in NEWS & UPDATES

CNET News, Feb. 19, 2009 By Declan McCullagh, Chief Political Correspondent Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police… Continue Reading

Same Facts, Different Results: California Court Declines to Reconsider Ruling in Favor of Rambus, Despite Delaware Court’s Opposite Conclusion

Posted in NEWS & UPDATES

Hynix Semiconductor Inc. v. Rambus Inc., 2009 WL 292205 (N.D. Cal. Feb. 3, 2009) Beginning in 2000, Rambus Inc. (“Rambus”) alleged that several companies had infringed its patents and instituted legal action.  Among the companies accused by Rambus were Micron Technology, Inc (“Micron”) and Hynix Semiconductors, Inc. (“Hynix”).  In response to the allegations of infringement,… Continue Reading

K&L Gates Partners to Speak at Upcoming E-Discovery Events

Posted in EVENTS

The American College of Trust and Estate Counsel – 2009 Annual Meeting March 5-6, 2009 The Westin Mission Hills Rancho Mirage, CA K&L Gates Partner Martha Dawson will present “Where There’s a Will, There’s Metadata:  Are your Clients’ (And Your Own) Secrets Really Safe?” on March 5th at 9:00 AM and again on March 6th… Continue Reading

Recognizing Broader Restrictions on Third-Party Discovery, Court Denies Plaintiff’s Fifth Motion to Compel Mirror Image of Computers


Mintel Int’l Group, Ltd. v. Neerghen, 2009 WL 249227 (N.D. Ill. Feb. 3, 2009) In this case, the plaintiff, Mintel International Group Limited (“Mintel”), alleged that defendant Neerghen violated the Illinois Trade Secrets Act, the Computer Fraud Abuse Act, and various terms of his employment contract when he emailed confidential Mintel documents to his personal… Continue Reading

A Promise Made is a Promise Kept: Court Holds Party to Its Promise and Orders Re-Production in Native Format but Orders Requesting Party to Bear the Cost


In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D. Ky. Feb. 2, 2009) In this case, despite prior production in accordance with the Federal Rules, the court enforced a promise to produce in native format but ordered the requesting party to bear the costs. This matter came before the court on the motion of… Continue Reading

Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions


SEC v. Badian, 2009 WL 222783 (S.D.N.Y Jan. 26, 2009) In this case, Rhino Investors, Inc. (“Rhino”), a non-party, sought to claw back approximately 260 documents that it claimed were inadvertently produced in 2003 in the midst of an SEC investigation.  The court, applying the four factors set forth in Louis Sportswear, U.S.A., Inc. v…. Continue Reading

Rejecting Arguments Regarding “Transitory Nature” of Data and Server Limitations, Court Finds Defendants Failed to Preserve Evidence in Bad Faith, Orders Adverse Inference and other Sanctions


Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009) Upon finding that defendants acted in bad faith to deliberately destroy relevant evidence despite a duty to preserve, the court imposed severe sanctions. Defendant Usenet.com, operated by defendant Gerald Reynolds, is a commercial Usenet provider.  Usenet is a “network of loosely connected… Continue Reading

Despite Protection of Marital Privilege from Email’s Admission “in Judicial or Grand Jury Proceedings,” Court Finds Email may be Admitted for Other Purposes and Denies Motion to Suppress

Posted in NEWS & UPDATES

U.S. v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008) In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas… Continue Reading