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

Monthly Archives: March 2009

Vendor’s Mistake Results in Inadvertent Production, Court finds No Waiver

Posted in CASE SUMMARIES

Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009) In this declaratory judgment action, the parties sought to settle the issue of copyright ownership over a made-for-television movie called The Secret.  In the course of discovery, due to a mistake by their “document vendor,” plaintiffs inadvertently produced privileged information.  Upon discovery of the… Continue Reading

Court Grants Plaintiff’s Motion to Compel Re-Production of Particular ESI in Light of Discrepancies between Emails and Attachments, Orders Parties to Confer Regarding Request for Access to Hard Drives

Posted in CASE SUMMARIES

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009) In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to… Continue Reading

Finding Defendants’ Summaries an Insufficient Discovery Response, Court Grants Motion to Compel and Authorizes Plaintiff to Submit Proposed Hard Drive Inspection Protocol for Court’s Consideration

Posted in CASE SUMMARIES

Anthropologie, Inc. v. Forever 21, Inc., 2009 WL 690239 (S.D.N.Y. Mar. 13, 2009) In this copyright infringement case, defendants refused to properly respond to discovery and instead provided summaries of the requested information designated “for settlement purposes only.”  Finding these responses inadequate, and noting defendants numerous misrepresentations to the court, the court granted plaintiff’s motion… Continue Reading

Court Declines to “Overturn the Well-Settled Rule in New York” that the Party Seeking Discovery Bears the Cost

Posted in CASE SUMMARIES

T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009) In this breach of contract action, both parties sought to compel the production of requested discovery.  Specifically, plaintiff sought to compel production of defendant’s project-related emails.  Defendant did not object to such production but, because of technological… Continue Reading

Court’s Opinion a “Wake-Up Call” About the Need for Careful Deliberation and Cooperation in Crafting Search Terms

Posted in CASE SUMMARIES

William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009) This case arose from disputes over alleged defects and delay in the construction of the Bronx County Hall of Justice.  In the course of litigation, The Dormitory Authority of New York (“DASNY”) agreed to produce the relevant documents… Continue Reading

K&L Gates Obtains Ruling Denying Defendant’s Motion for Contempt Against Plaintiff’s Technical Consultant, and Court Grants Plaintiff’s Motion for Sanctions for Deletion of Data during Pendency of Litigation

Posted in CASE SUMMARIES

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. Mar. 19, 2009) In this case arising from a dispute over sales commissions, the court denied Defendant Ohio Star Forge Company’s (“OSF’s”) motions for contempt and sanctions and granted plaintiff, Technical Sales Associates, Inc.’s (“TSA”), motion for sanctions for destruction of… Continue Reading

Court Finds Failure to Implement Litigation Hold Gross Negligence but Declines to Order Adverse Inference where Plaintiffs Failed to Establish Relevance of the Information Destroyed

Posted in CASE SUMMARIES

ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y. Mar. 9, 2009) In this case, plaintiffs moved for an adverse inference instruction alleging that Nassau County failed to timely implement a litigation hold which resulted in the destruction of potentially relevant documents and that it failed to adequately search for potentially responsive electronically stored information… Continue Reading

State has Obligation to Provide Defendants “Meaningful Access” to Copies of Seized Hard Drives

Posted in CASE SUMMARIES

State v. Dingman, 202 P.3d 388 (Wash. App. 2009) On appeal from his conviction for first degree theft and money laundering, Dingman argued that the trial court erred when it denied his repeated discovery requests for meaningful access to the hard drives seized from his house.  The appellate court agreed, and the case was reversed… Continue Reading

American College of Trial Lawyers Releases Final Report Addressing Discovery and Issues Impacting Discovery, Encourages Public Comment and Debate

Posted in NEWS & UPDATES

On March 11, 2009, the American College of Trial Lawyers released its report on discovery and issues impacting discovery.  The report is the final product of a joint project between members of the American College of Trial Lawyers Task Force on Discovery and The Institute for the Advancement of the American Legal System.  The project… Continue Reading

Court Imposes Sanctions on Plaintiff and Counsel, Orders Plaintiff to Provide Access to Database and for Attorney and his Law Firm to Pay Defendant’s Costs, Fees, and Expenses

Posted in CASE SUMMARIES

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) This case arises from an insurance dispute following damage to Bray & Gillespie’s (“B&G”) resort properties from Hurricanes Charley, Frances, and Jeanne.  B&G was represented by Anderson, Kill & Olick, P.C. (“AKO”) in connection with the submission of… Continue Reading

California Assembly Approves “Electronic Discovery Act,” Sends Bill to Senate

Posted in NEWS & UPDATES

On March 12, 2009 California’s Assembly took steps toward the legislature’s approval of proposed amendments to California’s Code of Civil Procedure to include rules governing the discovery of electronically stored information, by approving House Assembly Bill 5 and sending the bill to the Senate for its approval.  The bill was then introduced in the Senate… Continue Reading

EU Article 29 Working Party Releases Working Document on Pre-Trial Discovery for Cross Border Civil Litigation

Posted in NEWS & UPDATES

On February 11, 2009, the EU Article 29 Working Party, set up under Article 29 of Directive 95/46/EC, released its working document addressing the difficulties of cross border discovery and providing guidance to EU data controllers on how to proceed. Recognizing the “need for reconciling the requirements of US litigation rules and the EU data… Continue Reading

Suspicious Timing of Destruction Results in Adverse Inference and Permission to Add a Claim of Exemplary Damages despite Lack of “Smoking Gun”

Posted in CASE SUMMARIES

Smith v. Slifer Smith & Frampton/Vail Assocs. Real Estate, LLC, 2009 WL 482603 (D. Colo. Feb. 25, 2009) Plaintiffs, as representatives of an estate, retained defendants, including broker Peter Seibert, to assist in selling a piece of the estate’s property.  The property eventually sold, on defendants’ recommendation, for approximately $2.8 million.  83 days later, defendants… Continue Reading

Court Addresses Tension between Defamation Victim’s Rights and First Amendment Protection of Anonymous Internet Speech, Provides Guidance on How to Proceed

Posted in CASE SUMMARIES

Indep. Newspapers, Inc. v. Brodie, 2009 WL 484956 (Md. Feb. 27, 2009) Finding plaintiff/appellee failed to show a valid cause of action for defamation, the appellate court vacated an order requiring appellant to identify the alleged anonymous defamers and remanded the case for entry of an order granting appellant’s motion to quash. In this defamation… Continue Reading

Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response

Posted in CASE SUMMARIES

Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009) Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009) (Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact). In this case, the court granted plaintiff’s motion… Continue Reading