Archive: October 2010

1
Where “Entire Computer and Component Manufacturer’s Industry” was on Notice of Potential for Litigation, Defendant’s Failure to Preserve Warrants Sanctions
2
Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts
3
Metadata is Subject to Disclosure Pursuant to Washington’s Public Records Act
4
Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production
5
Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery
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Building Your e-Discovery Toolkit
7
Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Where “Entire Computer and Component Manufacturer’s Industry” was on Notice of Potential for Litigation, Defendant’s Failure to Preserve Warrants Sanctions

Phillip M. Adams & Assoc., LLC v. Winbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010)

In this ongoing multi-defendant patent litigation, the court has previously addressed allegations of spoliation.  In March 2009, the court found sanctions were warranted for defendant ASUS Computer International’s violation of its duty to preserve which arose in the “1999-2000 environment” of litigation surrounding the technology to resolve a defect in a particular floppy disk controller (“FDC”).  In this case, the court reaffirmed its earlier holding regarding the trigger for defendants’ duty to preserve, namely that “[i]n late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well publicized settlement in a large class action lawsuit against Toshiba.”  Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

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Court Orders Production of Plaintiff’s User Names and Passwords for Social Network Accounts

McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010)

In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords.  Plaintiff objected, arguing that the information was confidential.  Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.

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Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information.  Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years.  Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost.  Defendants also objected to the temporal scope of discovery.  Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery

Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery.  The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today.  Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.”  Those principles are:

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Building Your e-Discovery Toolkit

By Julie Anne Halter, K&L Gates

This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.

In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet.  Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006.  And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.

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Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

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