Archive: July 2010

1
New York Court Provides Detailed Instruction on Protocol for Discovery of Cloned Hard Drive
2
Upcoming Events – August
3
Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes
4
Citing Rule 37(e), Court Denies Spoliation Sanctions Despite the Existence of a Duty to Preserve
5
Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party

New York Court Provides Detailed Instruction on Protocol for Discovery of Cloned Hard Drive

Schreiber v. Schreiber, 2010 WL 2735672 (N.Y. Sup. Ct. June 25, 2010)

In this matrimonial action, plaintiff sought access to her husband’s (the defendant) office computer to determine his true financial condition.  After denying plaintiff’s initial motion, the court directed (by stipulated order) that a clone of defendant’s office hard drive be made at plaintiff’s expense.  Thereafter, the court denied plaintiff’s motion for access to the cloned drive upon finding her request for unrestricted access overbroad.  “Equally important” to the court was plaintiff’s failure to propose any protocol for investigation of defendant’s hard drive.  The court instructed that should the plaintiff wish to renew her motion, her renewal “must contain a detailed, step-by-step discovery protocol that would allow for the protection of privileged and private material.”  Moreover, the court provided detailed instruction for what such a protocol should contain:

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Upcoming Events – August

Strafford Publications
E-Discovery Cost Containment Legal Strategies: 
Leveraging Economical Litigation Agreements, E-Mediation, and Other Emerging Tools

August 19, 2010
Webinar/Teleconference
10:00 – 11:30 AM PDT

This CLE webinar will provide counsel with strategies to contain e-discovery costs without sacrificing quality or increasing legal risks or potential court sanctions. The panel, including K&L Gates Partner Todd Nunn, will review and evaluate emerging tools and ongoing developments within the legal profession.

To learn more or to register, click here.

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Court Orders Retention of Third Party Vendor to Assist with Document Review and Production, Appoints Special Master to Resolve Future Disputes

Multiven, Inc. v. Cisco Sys., Inc., 2010 WL 2813618 (N.D. Cal. July 9, 2010)

Observing that plaintiff and counterdefendants had insisted upon “a review process that guarantees that they will not finish this extensive project in any reasonable amount of time”, namely reviewing large volumes of information without first narrowing the material using search terms, the court acknowledged the need to expedite production and directed plaintiff and counterdedendants to retain a third party vendor to assist in their discovery efforts.  Accepting defendant’s offer, the court further ordered that Cisco would bear half the cost.

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Citing Rule 37(e), Court Denies Spoliation Sanctions Despite the Existence of a Duty to Preserve

Olson v. Sax, 2010 WL 2639853 (E.D. Wis. June 25, 2010)

Citing a lack of evidence that defendants “engaged in the ‘bad faith’ destruction of evidence for the purpose of hiding adverse evidence” and Fed. R. Civ. P. 37(e), the court denied plaintiff’s motion for sanctions for defendants’ destruction of relevant videotape, despite the existence of a duty to preserve.

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Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party

Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010)

Defendants sought production of electronically stored information for a period of 18 years – a significant departure from the default period of five years previously imposed.  Upon plaintiffs’ showing that retrieval of the additional data by a vendor would cost approximately $1 million to $1.5 million (not including the cost of review), the court found the information was “not reasonably accessible”.  However, the court also found that defendants had shown good cause to compel the requested production.  Considering the relevance of the data and its possible unavailability from an alternative source as well as plaintiffs’ costs from producing the ESI, the court reasoned that “in relation to the importance of the interest at stake … including the likely very substantial financial stakes, [the] costs may be justified.”  Accordingly, the court granted defendants’ motion to compel and held that if plaintiffs employed an outside vendor to assist in fulfilling their obligation, defendants would bear 80 percent of the reasonable vendor costs incurred.

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