Archive: February 2010

1
Court Sanctions Plaintiff for Accessing Password-Protected Documents and Other Violations, Reduces Sanction based on Behavior of Plaintiff’s Counsel and Defendant
2
Court Finds Non-Party’s Claims of Privilege Waived, Rejects Assertions of Undue Burden, Grants Defendant’s Motions to Compel
3
Defendant “Fails to Show that it is Settled Law that the Party Requesting Discovery Must Bear the Cost of Production,” Court Denies Motion for A Protective Order
4
Ontario’s New Rules of Civil Procedure Address Electronic Discovery
5
Court Compels Production of Foreign Data and Re-Production of “Already-Produced” Electronic Discovery in a Reasonably Usable Form

Court Sanctions Plaintiff for Accessing Password-Protected Documents and Other Violations, Reduces Sanction based on Behavior of Plaintiff’s Counsel and Defendant

Lawson v. Sun Microsystems, Inc., 2009 WL 5842136 (S.D. Ind. Oct. 16, 2009);  Lawson v. Sun Microsystems, Inc., 2010 WL 503054 (S.D. Ind. Feb. 8, 2010)

Where plaintiff accessed privileged, password-protected documents in defendant’s production, “carelessly” produced poor and incomplete copies of relevant taped conversations, and intentionally lied regarding taped conversations in deposition, the magistrate judge declined to recommend dismissal but recommended monetary sanctions instead.  The amount of sanctions recommended was reduced by 25% upon the magistrate judge’s finding that plaintiff’s counsel mitigated plaintiff’s violations by ignoring plaintiff’s emails regarding the password-protected documents.  The magistrate judge also found plaintiff’s “improprieties” mitigated “by the part [the defendant] and its counsel played in creating this perfect storm of a disaster” and reduced the sanction an additional 25%.  While the magistrate judge recommended plaintiff’s counsel be ordered to pay monetary sanctions equal to a 25% reduction in plaintiff’s maximum sanction, the district court declined to adopt that recommendation.  The recommendation was otherwise adopted.

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Court Finds Non-Party’s Claims of Privilege Waived, Rejects Assertions of Undue Burden, Grants Defendant’s Motions to Compel

Seger v. Ernest-Spencer, Inc., 2010 WL 378113 (D. Neb. Jan. 26, 2010)

In this personal injury case, the court found a non-party had waived its claims of privilege as to already-produced documents and granted defendant’s motion to compel their production upon finding that disclosure was “knowing and intentional” as evidenced by the non-party’s failure to establish reasonable precautions to prevent disclosure and its failure to timely assert a claim of privilege, among other things.  Rejecting claims of undue burden, the court also granted defendant’s motion to compel the non-party’s production of emails after reducing defendant’s proposed search terms to eliminate those deemed irrelevant or overly broad.

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Defendant “Fails to Show that it is Settled Law that the Party Requesting Discovery Must Bear the Cost of Production,” Court Denies Motion for A Protective Order

MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 895 N.Y.S.2d 643 (N.Y. Sup. Ct. 2010)

Upon defendant’s motion for a protective order to require plaintiff to bear the cost of defendant’s production of electronically stored information (“ESI”), the court declined to follow the purportedly “well settled rule” in New York that the party seeking discovery should bear the cost and denied defendant’s motion.  (See T.A. Ahern Contractors Corp. v. Dormitory Auth. of State of N.Y., 875 N.Y.S.2d 862 (N.Y. Sup. Ct. 2009) declining to overturn the “well settled” rule in New York that the party seeking discovery bears the cost.)

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Ontario’s New Rules of Civil Procedure Address Electronic Discovery

As of January 1, 2010, Ontario’s new Rules of Civil Procedure became effective, including significant changes to the rules of discovery.  Among the changes/additions is Rule 29.1.03(4) Principles re Electronic Discovery, which states that “In preparing the discovery plan,” as is required by Rule 29.1.03 (1), “the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed and available from The Sedona Conference.”  In its explanation of the provisions of the newly effective Rules of Civil Procedure, the Ministry of the Attorney General specifically identified several of the Sedona Principles to be considered:

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Court Compels Production of Foreign Data and Re-Production of “Already-Produced” Electronic Discovery in a Reasonably Usable Form

Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 318477 (D. Utah Jan. 21, 2010)

In this breach of contract case, the court granted plaintiff’s motion to compel and ordered defendant (a German company) to produce responsive third-party, personal data, despite objections that such production would violate German law.  The court also granted plaintiff’s motion to compel the re-production of previously produced electronic discovery where defendant’s initial production did not conform to the requirements of Fed. R. Civ. P. 34.

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