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

Monthly Archives: June 2010

Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production


Major Tours Inc. v. Colorel, 2010 WL 2557250 (D.N.J. June 22, 2010)

Appealing an order from the magistrate judge, plaintiffs argued that defendants should bear the costs of producing inaccessible data where it was defendants’ failure to preserve that resulted in the data’s inaccessibility. The court declined to support such a rule, finding that defendants’ culpability was merely a factor for consideration when deciding whether to compel production for good cause. The court also found that the magistrate judge had adequately considered defendants’ culpability when crafting the underlying order and did not abuse his discretion. Accordingly, the order was affirmed.

Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve


Medcorp, Inc. v. Pinpoint Tech., Inc., 2010 WL 2500301 (D. Colo. June 15, 2010) Finding “willful” spoliation of 43 hard drives “in the sense that Plaintiff was aware of its responsibilities to preserve relevant evidence and failed to take necessary steps to do so”, a special master ordered a jury instruction which allowed the jury… Continue Reading

Upcoming Events – July

Posted in EVENTS

Washington Defense Trial Lawyers Annual Meeting and Convention July 22-25, 2010 Suncadia Resort, Washington On Friday, July 23rd at 9:45 AM, join K&L Gates Partner Todd Nunn for his presentation entitled, “E-Volving Discovery:  Dealing with ESI in the Discovery Process”. To learn more or to register, click here.

Government Employer’s Search of Employee’s Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment


City of Ontario v. Quon, 130 S. Ct. 2619 (2010) Yesterday, the U.S. Supreme Court issued its opinion in City of Ontario v. Quon, a case addressing whether a government employer’s search through an employee’s text messages, sent and received on a work-issued pager, violated the Fourth Amendment.  Reversing the Ninth Circuit, the Supreme Court… Continue Reading

Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments


Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010) Defendant subpoenaed several social networking sites seeking disclosure of plaintiff’s subscriber information and communications relevant to the underlying dispute.  Plaintiff sought to quash the subpoenas arguing that such disclosure would violate the Stored Communications Act (“SCA”).  The magistrate judge denied plaintiff’s motion… Continue Reading

Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant


Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) Despite receipt of plaintiff’s EEOC claim alleging employment discrimination, defendant failed to institute a litigation hold.  Instead, defendant identified three individuals likely to possess responsive information and asked them to identify and preserve relevant evidence.  Some of the individuals identified… Continue Reading

Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes


Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D. Ark. May 27, 2010) In this collective action brought under the Fair Labor Standards Act, plaintiffs and defendant reached significant impasse regarding the appropriate scope of discovery, including disagreement regarding search terms, the number and identity of custodians, the sources of data to be searched, and who… Continue Reading

For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law


Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010) For defendant’s and counsels’ discovery violations discovered with the assistance of a special master, including failing to adequately search for responsive material and misrepresenting search efforts to the court, the court indicated a likelihood that it would find as a matter of… Continue Reading

Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program

Posted in NEWS & UPDATES

Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of… Continue Reading

Judge Scheindlin Amends Recent Pension Opinion

Posted in NEWS & UPDATES

On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC.  The order provides important clarification regarding the scope of a party’s obligation to collect records from its employees.  The order states: At page 10, lines 7-10, replace… Continue Reading