Archive: June 2010

1
Culpability for Allowing Evidence to Become Inaccessible a Factor for Consideration when Determining Good Cause to Compel Production
2
Jury Instruction Allowing Inference that Destroyed Evidence Was Unfavorable and Payment of Attorneys’ Fees and Costs Ordered as Sanction for Failure to Preserve
3
Upcoming Events – July
4
Government Employer’s Search of Employee’s Text Messages on Employer-Issued Pager Did Not Violate Fourth Amendment
5
Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments
6
Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant
7
Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes
8
For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law
9
Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program
10
Judge Scheindlin Amends Recent Pension Opinion

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.

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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 to infer that the destroyed evidence was unfavorable to plaintiff and for the parties to split the cost of defendants’ litigation of the spoliation issue.  Upon a motion to modify the order, the magistrate judge affirmed the imposition of the jury instruction, but found plaintiff should pay all of defendants’ reasonable expenses and ordered payment of $89,365.88.

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Upcoming Events – July

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.

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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 held that the search was reasonable and that the employee’s Fourth Amendment rights were not violated.

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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 to quash upon finding the SCA was inapplicable. Plaintiff moved for reconsideration of the order.

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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 were substantially involved in the alleged discriminatory treatment of the plaintiff.  Despite this failure, defendant eventually produced most of the requested information, although some email was deemed likely to have been lost forever.  Finding defendant’s preservation efforts “reckless and grossly negligent”, the court ordered sanctions.

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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 should bear the costs.  Resolving each issue in turn, the court’s discussion focused in large part upon weighing the burden of plaintiffs’ requests against the potential to discover relevant information, including a discussion of the discoverability of backup tapes.  The court also declined to shift the costs of production.

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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 law that an agency relationship existed between defendant and another entity implicated in the underlying accident claims.  Accordingly, a hearing was set to address the possible sanctions as well as the implications of counsels’ actions for their involvement with the case.

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

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 electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored Information were tested in practice.  Although limited in its geographic scope and number of participants, the results of phase one provide valuable insight into possible ways to better the current civil system.  The second of three phases will begin on July 1, 2010 and may be expanded to increase the number of cases and participating judges.

Too lengthy to summarize, the full report is available here.

Judge Scheindlin Amends Recent Pension Opinion

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 <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence.>.

A full copy of the order is available here.

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