Archive: April 2010

1
Trial Court Abused Discretion in Ordering Forensic Examination Absent Pending Request for Production or Motion to Compel and in Appointing Special Master
2
United States Supreme Court Hears Argument on Expectation of Privacy as to Text Messages on Work Pager
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Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems
4
Court Declines to Impose Sanctions Against Qualcomm Attorneys Absent Evidence of Bad Faith
5
Court Orders Forensic Examination of Plaintiff’s Computers Absent Denial that “Responsive Emails May have Existed at One Point”
6
Court Rules Communications with Attorney Using Work Computer are Protected as Privileged
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Upcoming Events
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New York State Unified Court System Report Makes Recommendations for Improved Handling of E-Discovery

Trial Court Abused Discretion in Ordering Forensic Examination Absent Pending Request for Production or Motion to Compel and in Appointing Special Master

In re Art Harris, 2010 WL 1612205 (Tex. App. Apr. 22, 2010)

In this case, the appellate court granted petitioner’s writ of mandamus and ordered the withdrawal of three underlying discovery orders upon finding that the trial court abused its discretion when it ordered the production of petitioner’s hard drives for forensic examination and when it appointed a special master to conduct that examination.

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United States Supreme Court Hears Argument on Expectation of Privacy as to Text Messages on Work Pager

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008);  City of Ontario v. Quon (08-1332)

In the summer of 2008, the Ninth Circuit held that a city employee had a reasonable expectation of privacy as to personal text-messages sent from his city-issued and city-owned text-messaging pager (‘pager”).  The court further ruled that the employee’s Fourth Amendment rights were violated when his supervisor read those text messages, after requesting transcripts from the service provider.  The city has appealed the court’s findings to the United States Supreme Court and oral arguments were heard on Monday, April 19th. An opinion is expected in June, 2010. 

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Court Orders Monetary Sanctions for Production Delay Resulting from Counsel’s Failure to Become Familiar with Plaintiff’s Retention Policies and Systems

GFI Acquisition, LLC v. Am. Federated Title Corp. (In re A & M Fla. Props. II, LLC), 2010 WL 1418861 (Bankr. S.D.N.Y. Apr. 7, 2010)

Where plaintiff’s counsel “failed in his obligation to locate and produce all relevant documents in a timely manner” by failing to gain a sufficient understanding of plaintiff’s computer systems resulting in significantly delayed production of relevant documents, the court declined to impose terminating sanctions or an adverse inference but ordered monetary sanctions against plaintiff and counsel in an amount to be determined.

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Court Declines to Impose Sanctions Against Qualcomm Attorneys Absent Evidence of Bad Faith

Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (BLM) (S.D. Cal. Apr. 2, 2010)

Apparently bringing an end to one of the best known e-discovery sagas since the 2006 amendments to the Federal Rules, United States Magistrate Judge Barbara Major has declined to impose sanctions against the previously sanctioned Qualcomm attorneys absent evidence of bad faith.

On January 7, 2008, Magistrate Judge Major issued an order granting in part defendant’s motion for sanctions upon finding that the plaintiff, Qualcomm, intentionally withheld thousands of documents and that six attorneys “had assisted Qualcomm in withholding the critical documents by failing to conduct a reasonable inquiry into the adequacy of Qualcomm’s document production and by ignoring warning signs, which indicated that the document search was not thorough and that Qualcomm’s documents production was not complete.”  The sanctioned attorneys objected.  Thereafter, U.S. District Court Judge Rudi Brewster determined that the sanctioned attorneys “had a right to defend themselves” and “should not be prevented from defending their conduct by the attorney-client privilege of Qualcomm and its employees and representatives.”  Finding the self-defense exception to the attorney-client privilege applicable, the court lifted the sanctions and remanded the case to the Magistrate Judge for additional consideration. A ccordingly, between March 2008 and the present, the previously sanctioned attorneys undertook significant efforts to defend their actions.  As a result of those efforts, Magistrate Judge Major has now declined to impose sanctions: 

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Court Orders Forensic Examination of Plaintiff’s Computers Absent Denial that “Responsive Emails May have Existed at One Point”

Adhi v. Twp. of W. Pikeland, 2010 WL 1047894 (E.D. Pa. Mar. 16, 2010)

In this zoning dispute, defendant moved to enforce a prior order of the court and, essentially, compel more complete responses to discovery, including the production of electronically stored information (“ESI”), specifically emails.  Plaintiff indicated that even if responsive emails had existed, they were deleted in the ordinary course of business.  Accepting defendant’s assertions that “the mere deletion of an email does not make it lost forever”, however, the court ordered plaintiff to allow defendant’s “e-Discovery expert” to inspect plaintiff’s computers to determine if any responsive information was still contained on the hard drives or the servers.  In so ordering, the court reasoned that this would “allow Defendant to conduct discovery on information to which it is entitled without burdening Plaintiff with the expense of hiring a discovery expert.”

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Court Rules Communications with Attorney Using Work Computer are Protected as Privileged

Stengart v. Loving Care Agency, Inc., 2010 WL 1189458 (N.J. Mar. 30, 2010)

In this employment litigation, the Supreme Court of New Jersey addressed whether employees have a reasonable expectation of privacy as to attorney-client privileged emails sent and received on a work computer.  The court held that under the circumstances presented, the employee/plaintiff did have a reasonable expectation of privacy as to emails with her attorney.  Additionally, the court remanded the case to the trial court to determine what, if any, sanctions should be imposed upon defense counsel for reading and utilizing the emails at issue, despite indications that they were protected as privileged.

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Upcoming Events

Pennsylvania Bar Association: Internet Law Update

April 12, 2010
8:30 AM – 3:45 PM
PBI Professional Development Conference Center
Heinz 57 Center
339 Sixth Ave., Floor 7
Pittsburgh, PA

At this CLE addressing legal issues that arise through business and personal use of the Internet, K&L Gates Partner David Cohen will present a discussion of electronic discovery, including the most recent case law and technology that is impacting electronic discovery.

Click here to learn more and to register.

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New York State Unified Court System Report Makes Recommendations for Improved Handling of E-Discovery

In New York, Chief Judge Jonathan Lippman and Chief Administrative Judge Ann Pfau released a report recommending improvements for how electronic discovery is handled in New York State Courts.  The report, based on “extensive research and interviews with experts in electronic discovery”, addresses the problems of electronic discovery, including cost and delay, and provides several recommendations on how "the courts  can manage e-discovery in a more expert, efficient and cost-effective manner within the framework of existing law."

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