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

Monthly Archives: August 2009

Upcoming Events – September 2009

Posted in EVENTS

What You Need to Know About Records Management September 2, 2009 Podcast hosted by Karl Schieneman 9:00 AM EDT K&L Gates Partner Thomas J. Smith will speak on the topic of what every company should know about records management. Click here to learn more.

9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful

Posted in NEWS & UPDATES

Law.com, August 27, 2009 By Dan Levine The Justice Department’s aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age. In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were… Continue Reading

Holistic Privilege Protection: Protecting Privilege by Taking “Reasonable Steps” Throughout the Process of Production

Posted in NEWS & UPDATES

By K&L Gates partner Todd Nunn. This article appears in the summer edition of DRI’s E-Discovery Connection, and begins: There are now rules specifically designed to protect the attorney-client privilege during document production:  Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502.  These rules provide a procedure for clawing back inadvertently produced… Continue Reading

Court Orders Monetary Sanction for Failure to Preserve to be Paid by Defendant and Counsel


Green v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009) Upon one of the defendant’s revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions.  Finding that the defendant and counsel violated their duty to preserve evidence,… Continue Reading

Court Articulates Analysis Under FRE 502, Finds No Waiver of Inadvertently Produced Email


Coburn Group, LLC v. Whitecap Advisors, LLC, 640 F. Supp. 2d 1032 (N.D. Ill. 2009) In this case, defendant, Whitecap Advisors LLC (“Whitecap”), sought to compel the return of one privileged email and to strike deposition testimony regarding the same.  Plaintiff, Coburn Group, LLC (“Coburn”), resisted returning the email arguing that it was not protected… Continue Reading

For Discovery Violations, Court Sanctions Plaintiff and Counsel… Again


Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009) In this case, plaintiff Bray & Gillespie Management, LLC (“B&G”) sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004.  Defendant, Lexington Insurance Company (“Lexington”),… Continue Reading

No Sanctions for Failure to Preserve Links to Graphics in Emails Where Plaintiff Failed to Establish Bad Faith or How the Images were Relevant or Necessary to His Claims


Ferron v. Echostar Satellite, LLC, 2009 WL 2370623 (S.D. Ohio July 30, 2009) Plaintiff’s 1300-page complaint alleged numerous violations of the Ohio Consumer Sales Practice Act against multiple defendants for sending email messages which conveyed a commercial advertisement and displayed the name and/or logo of “Dish Network.”  In the course of discovery, Plaintiff sought sanctions… Continue Reading

Third Parties Held in Contempt for Failure to Obey Court Order, Including Using Computer Following Instructions that “They May Not Touch the Computers Except to Turn Them Off” Prior To Production


Sonomedica, Inc. v. Mohler, 2009 WL 2371507 (E.D. Va. July 28, 2009) In this case, the court adopted the recommendation of the magistrate judge and found third parties in contempt for violation of the court’s orders, including the spoliation of electronically stored information on hard drives they were ordered to produce, and ordered them to… Continue Reading

Court Denies Motion for Sanctions for Failure to Suspend Automatic Overwriting of Backup Tapes Absent Showing of Bad Faith


Southeastern Mech. Servs., Inc. v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009) Defendant Thermal Engineering Construction Services, Inc. (“TEI”) moved for spoliation sanctions alleging that plaintiff failed to adopt a proper litigation hold procedure which resulted in the automatic deletion of email and other electronically stored information (“ESI”) from plaintiff’s backup tapes.  Specifically,… Continue Reading

Finding Defendant “May Have” Caused the Deletion of “Possibly Relevant Emails,” Court Orders Sanctions, Including Payment to Local Bar Association


Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009) In this case, defendant Manpower, Inc. (“Manpower”) failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers.  As a result, “possibly relevant emails were destroyed.”  Despite significant… Continue Reading

Employee’s Communications Protected by Attorney-Client Privilege Despite Use of Work Computer


Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Sup. Ct. 2009) Reversing the trial court, the appellate court found that an employee’s communications with her attorney via her personal email account were privileged despite the use of her work computer to send those communications.  The trial court previously ruled that the communications were… Continue Reading