Archive: February 2009

1
Court Considers Zubulake Factors, Denies Defendant’s Motion to Shift Cost of OCR Processing
2
Plaintiff Fails to Respond Promptly to Notice of Inadvertent Production, Court Orders Privilege Waived
3
Key Lawmaker Moves to Protect Privilege and Work-Product Doctrine
4
Court Dismisses Plaintiffs’ Claims as Sanction for Discarding Laptop, Orders Adverse Inference Instruction as to Defendants’ Cross-Claims
5
Bill proposes ISPs, Wi-Fi keep logs for police
6
Same Facts, Different Results: California Court Declines to Reconsider Ruling in Favor of Rambus, Despite Delaware Court’s Opposite Conclusion
7
K&L Gates Partners to Speak at Upcoming E-Discovery Events
8
Recognizing Broader Restrictions on Third-Party Discovery, Court Denies Plaintiff’s Fifth Motion to Compel Mirror Image of Computers
9
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
10
Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions

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 plaintiff.  In support of its assertion, defendant claimed that the cost of conversion to OCR would likely exceed $200,000 and that “it does not itself seek to use the OCR process, and any extra expense would be incurred on it behalf solely for Plaintiff’s convenience.”  Defendant offered no evidence in support of its estimate, however, and the court’s own research indicated the estimated cost appeared to be “somewhat inflated.”  Nor did defendant deny that the OCR process would make the documents easier to examine, thus reducing costs for attorney time.

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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 plaintiff as inadvertently produced and addressed by the court’s prior order.  However, as to documents not identified at the time of the order, the court declared any privilege waived.

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Key Lawmaker Moves to Protect Privilege and Work-Product Doctrine

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., the ranking minority member of the Senate Judiciary Committee, has reintroduced, with bipartisan support, the Attorney-Client Protection Act of 2009, S. 445.

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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 notice that defendants were terminating her right to advertise because of complaints about her business practices, including that she disparaged other advertisers and dealers. In the parties’ subsequent discussions, defendants revealed their possession of a file containing several complaints about Kvitka as well as 15 pages of emails, written by her, in which she disparaged other advertisers.

Unable to resolve the conflict out of court, Kvitka filed suit.  In the course of discovery, it was revealed that despite Kvitka’s counsel’s receipt of correspondence from defendants specifically requesting preservation of Kvitka’s computer and emails, Kvitka had nonetheless discarded her laptop.

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Bill proposes ISPs, Wi-Fi keep logs for police

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 investigations.

The legislation, which echoes a measure proposed by one of their Democratic colleagues three years ago, would impose unprecedented data retention requirements on a broad swath of Internet access providers and is certain to draw fire from businesses and privacy advocates.

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

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, both Micron and Hynix filed actions for declaratory judgment in Delaware and California, respectively.  Both Micron and Hynix also asserted the unenforceability of the patents and alleged that Rambus had unclean hands as a result of extensive document destruction.  In both cases, a bench trial was held on the unclean hands defense.

In January 2006, the California court ruled in Rambus’s favor holding that Hynix’s defense of unclean hands had failed.  Hynix Semiconductor, Inc. v. Rambus Inc., 2006 WL 565893 (N.D. Cal. Jan. 5, 2006).  In January 2009, the Delaware court ruled in Micron’s favor holding that Rambus had destroyed documents in bad faith and, as a sanction, ordered the patents unenforceable against Micron.  Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009).

Based on the ruling of the Delaware court, Hynix moved for summary judgment on the basis of defensive non-mutual issue preclusion or, in the alternative, for reconsideration of the California court’s prior decision regarding Rambus’s actions.  Those motions were denied, leaving in place the conflicting rulings of the two courts.

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K&L Gates Partners to Speak at Upcoming E-Discovery 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 at 8:00 AM.

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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 account and subsequently accepted employment with Mintel’s competitor, Datamonitor. Throughout the course of litigation, five motions to compel were filed seeking a mirror image of third-party Datamonitor’s computers.  All of those motions were denied.

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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 GeoStar Corporation for relief from the court’s order requiring it to produce financial information in its native format.  Plaintiffs originally requested financial information from GeoStar “as they are kept in the usual course of business” or organized and labeled in a manner prescribed.  GeoStar objected, but the court ultimately entered orders requiring production.  The orders did not specify the format of production.

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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. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and its progeny, concluded that Rhino had waived any privilege it may have asserted.

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