Archive: October 2009

1
Supreme Court of Arizona holds Metadata is Subject to Public Records Requests
2
Sedona Continues Call for Cooperation
3
Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation
4
Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”
5
Upcoming Events – November
6
Thompson Reuters’ 13th Annual Electronic Discovery and Records Retention Conference
7
Indiana Supreme Court Rules Trial Court Properly Admitted Evidence of Defendant’s MySpace Page in Murder Trial
8
Records Management, Privacy and e-Discovery Workshop: Achieving sensible solutions for records management, risk reduction and litigation readiness
9
Pa. Court Weighs In on E-Discovery
10
Finding Emails “Not Reasonably Accessible” Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms

Supreme Court of Arizona holds Metadata is Subject to Public Records Requests

Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)

In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.”  [Emphasis added.]

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Sedona Continues Call for Cooperation

By Jennifer H. Rearden and Farrah Pepper
New York Law Journal
October 29, 2009

It turns out that Jean-Paul Sartre’s famous pronouncement that "hell is other people" was overly broad.  Other people per se are not the problem, but rather other lawyers — and uncooperative ones at that.  A federal judge in the late 1980s confirmed as much, as a recent e-discovery opinion reminds us:  "If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."[FOOTNOTE 1]

To read the full article, posted at Law.com, click here.

Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation

Peschel v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009)

In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars.  Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].” 

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Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination.  In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production.  Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

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Upcoming Events – November

National Business Institute: Keeping Up with E-Discovery – Live Seminar

November 18, 2009
Washington State Convention and Trade Center
800 Convention Place
Seattle, WA

K&L Gates partner Todd Nunn will present “The Amendments to the Federal Rules of Civil Procedure and Recent Case Law” addressing attorneys’ obligations under the rules and recent decisions that effect those obligations.  Todd will also present “Electronic Discovery in the States and Recent Case Law” – an overview of state activity with regard to electronic discovery and a discussion of recent case law from state courts.

Click here to learn more and to register.

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Thompson Reuters’ 13th Annual Electronic Discovery and Records Retention Conference

November 5-6, 2009
Hotel Sax Chicago
333 N. Dearborn St.
Chicago IL 60654

K&L Gates partner David R. Cohen will participate in a panel discussion, “Retrospective Analysis of Critical Cases and How to Manage Your Risk” on November 5th at 10:15 AM.  At this discussion, participants will hear about the most relevant cases in this industry and learn how to avoid common pitfalls.  This panel will also explore how different Information Governance policies could have yielded different results.

Click here to learn more and to register.

Indiana Supreme Court Rules Trial Court Properly Admitted Evidence of Defendant’s MySpace Page in Murder Trial

Clark v. State, 915 N.E.2d 126 (2009)

Defendant Ian J. Clark was found guilty of murdering a two year old girl left in his care and was sentenced to life in prison without parole.  On appeal, Clark argued that the trial court improperly admitted evidence from his MySpace account in violation of Ind. R. Evid. 404(b).  Taking up the “novel question” of the propriety of admitting such evidence, the Supreme Court of Indiana ruled that the trial court did not err in admitting the evidence, particularly where Clark’s own testimony made his character a “central issue” of his defense.  The verdict and sentence were therefore affirmed.

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Records Management, Privacy and e-Discovery Workshop: Achieving sensible solutions for records management, risk reduction and litigation readiness

Featuring K&L Gates Partners, David R. Cohen and Dominic Bray, along with the Director of EMEA IM Marketing for HP Software, Erik Moller, this workshop addresses a myriad of issues including the risks and complexity of e-discovery and how to minimize those risks while maximizing cost savings and auxiliary benefits, European Privacy and Data Protection issues, and recommendations for best practices and solutions planning for data management, privacy and disclosure.

To view this presentation, click here.

Pa. Court Weighs In on E-Discovery

By Peter Hall
Pennsylvania Law Weekly
October 19, 2009

An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case.

In Brooks v. Frattaroli, PICS Case No. 09-1709 (C.P. Lebanon Oct. 5, 2009), Lebanon County Common Pleas Judge Bradford H. Charles granted the defendants’ motion for a protective order, ruling that the plaintiff’s discovery request to enter the defendant’s property to inspect and copy computer files was overly broad.

Noting a relative dearth of precedent governing discovery of electronically stored information in Pennsylvania, Charles drew on the decisions of federal courts and recent changes to Federal Rule of Civil Procedure 34 to arrive at a balancing test that weighs the defendant’s right to privacy against the plaintiff’s desire to determine the truth.

To read the full article, posted at Law.com, click here.

Finding Emails “Not Reasonably Accessible” Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties’ respective requests for production.  The court initially “urged the parties” to work cooperatively to develop agreed search terms to be utilized by MP3tunes in its search for responsive electronically stored information (“ESI”).  After an initial failure to agree (and MP3tunes unilateral decision to search for ESI using only one search term), the court again directed counsel to cooperate to agree on search terms for MP3tunes use.  Again, the parties failed to reach agreement and sought intervention by the court on a number of issues.

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