Archive: January 2010

1
Personal Emails Retained by Public School’s Email System Not Subject to Michigan’s Freedom of Information Act
2
Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel
3
“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion
4
District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations
5
Upcoming Events – February
6
Court Finds Claims of Burden and Expense “Exaggerated,” Declines to Find Emails “Not Reasonably Accessible”
7
Appellate Court Affirms Order Allowing Plaintiff’s Expert to Image Defendants’ Hard Drives to Support Claims of Spoliation and Fraud
8
Upcoming Events – January

Personal Emails Retained by Public School’s Email System Not Subject to Michigan’s Freedom of Information Act

Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Mich. Ct. App. Jan. 26, 2010)

In this “reverse” Freedom of Information Act (FOIA) case, the trial court held that personal emails generated by and stored on a public school’s email system were public records subject to FOIA.  Upon plaintiffs’ appeal, the appellate court reversed the trial court and held that such emails were not public records and thus not subject to FOIA.  Moreover, the appellate court concluded that violation of an acceptable use policy barring personal use of an email system – “at least one that does not expressly provide that emails are subject to FOIA” – does not render personal emails subject to FOIA.

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Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010)

In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost” and that plaintiffs had failed to show good cause to compel production of the ESI and denied plaintiffs’ motion to compel.

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“Zubulake Revisited: Six Years Later”: Judge Shira Scheindlin Issues her Latest e-Discovery Opinion

Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010) (Amended Order)

Issued earlier this month, Judge Shira Scheindlin’s opinion in Pension Comm. of Univer. of Montreal Pension Plan v. Bank of Am. Secs., LLC, addresses the issues of parties’ preservation obligations and spoliation in great detail, including detailed and informative discussions of the varying levels of culpability in failing to uphold discovery obligations, the required burdens of proof, and the appropriate remedies upon a finding of spoliation.

The opinion was summed up by Judge Scheindlin in the introduction to her opinion:

By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records-paper or electronic-and to search in the right places for those records, will inevitably result in the spoliation of evidence.

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District Court Rejects Total Dismissal of Claims, Orders Partial Dismissal and $75,000 in Monetary Sanctions for Egregious Discovery Violations

Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2009 WL 5218035 (M.D. Fla. Aug. 3, 2009);  Bray & Gillespie Mgmt., LLC v. Lexington Ins. Co., 2010 WL 55595 (M.D. Fla. Jan. 5, 2010)

Following her finding that “[Bray & Gillespie], through counsel, acted willfully and in bad faith in violation of the Federal Rules of Civil Procedure and this court’s orders” by failing to make reasonable efforts to search for and produce documents in response to court orders and by making repeated misrepresentations to the court, among other things, the Magistrate Judge recommended that the plaintiff’s claims be stricken and that the case be dismissed with prejudice.  (For additional details of plaintiff’s discovery abuses, click here to be taken to a summary of a prior opinion in this case.)  On review of that recommendation, the District Court Judge found total dismissal of all the plaintiff’s claims “an excessive remedy” and instead ordered the dismissal of all claims for damages arising from the alleged interruption of business at the Treasure Island Property and for the plaintiff to pay $75,000 to the defendant for expenses incurred in pursuit of its motion for sanctions.

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Upcoming Events – February

Information Week Virtual Event: Modernizing IT Governance, Risk and Compliance to Accelerate Flexibility and Visibility:  “E-Discovery Drill Down: First hand insight on driving more efficiency, cost-value and priorities in electronic e-discovery initiatives.”

February 10, 2010
5:00-5:45 PM ET

K&L Gates Partner Thomas J. Smith will participate in a panel discussion focusing on document retention and management and “establishing compliant-driven policies that prevent overloading or underloading information that may need to be retrieved in the future.”

Click here to learn more and to register.

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Court Finds Claims of Burden and Expense “Exaggerated,” Declines to Find Emails “Not Reasonably Accessible”

Starbucks Corp. v. ADT Security Servs., Inc., 2009 WL 4730798 (W.D. Wash. Apr. 30, 2009)

In this recently released opinion written early last year, the defendant, ADT Security Services, Inc. (“ADT”), sought to avoid its obligation to produce archived emails by arguing the emails were not “reasonably accessible because of undue burden or cost,” as that term is used in Fed. R. Civ. P. 26(b)(2)(B).  In support of this position, ADT’s Manager of Information Technology, John Mitchell, provided various estimates regarding the potential cost of time and money to restore the requested email.  In response, the plaintiff, Starbucks Corporation (“Starbucks”), provided its own estimates of the potential cost which were significantly lower than those proffered by ADT.  Finding Mitchell had “at every turn, provided exaggerated reasons and exaggerated expenses as to why ADT allegedly cannot and should not be ordered to comply with its discovery obligations,” the court declined to find the information at issue “not reasonably accessible.”  Moreover, the court indicated that even had the information been deemed not reasonably accessible, the court would have found that good cause existed to order the production.  Accordingly, Starbuck’s motion to compel was granted.

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Appellate Court Affirms Order Allowing Plaintiff’s Expert to Image Defendants’ Hard Drives to Support Claims of Spoliation and Fraud

Cornwall v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009)

In this wrongful death litigation, the trial court granted plaintiff’s motion to allow his forensic expert to create a mirror image of defendants’ hard drives.  Plaintiff asserted that examination of the drives would reveal evidence of defendants’ willful alteration or deletion of relevant evidence.  The court granted the motion despite defendants’ objections that such access would violate statutory and common law prohibitions against the disclosure of confidential medical information and that such access was not authorized under Fed. R. Civ. P. 34.  Defendants appealed.  On appeal, the order of the trial court was affirmed.

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Upcoming Events – January

Center for Competitive Management – E-Discovery Best Practices and Compliance Guidelines (Audio Conference)

January 14, 2010
2-3:15 PM ET

K&L Gates partners David Cohen and Todd Nunn will co-present this discussion of how to stay on top of the rapidly changing world of electronic records, discovery, and evidence including discussion of specific topics such as recent rulings and risks associated with e-discovery, best practices for managing electronic stored information, opportunities and challenges for 2010, and methods for cutting costs and lowering data loss risks.

For more information or to register, click here.

Thompson Publishing – Taming the E-Discovery Beast: Proactive Measures to Slash Costs and Reduce Risks (Webcast)

January 20, 2010
2 PM ET

K&L Gates partners David Cohen and Julie Anne Halter will co-present this discussion focusing on proactive steps that organizations can take before litigation to reduce e-discovery exposure and proven cost control and cost reduction strategies to employ during litigation.

For more information or to register, click here.

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