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

Monthly Archives: December 2010

Welcome Wisconsin! E-Discovery Amendments Become Effective January 1, 2011

Posted in NEWS & UPDATES

On January 1, 2011, the e-discovery amendments to Wisconsin’s rules of civil procedure become effective.  The amendments, affecting Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, address for the first time the discovery of electronically stored information (“ESI”).  Among other things, the amendments address issues including the parties’ obligation to meet and confer,… Continue Reading

Discovery of Social Networking Sites

Posted in NEWS & UPDATES

By: Martha Dawson, Michael Goodfried, K&L Gates This article appeared in DRI’s E-Discovery Connection, Volume 5 Issue 3, on December 23, 2010 Consider how you, or someone you know, uses social networking sites; and consider how valuable this could be in litigation. • “Check out the photos from my climb of Mt. Rainier. It rocked!… Continue Reading

Kids’ Access to Mom’s Email Account Waives Attorney-Client Privilege


Willis v. Willis, 914 N.Y.S.2d 243 (N.Y. App. Div. 2010) Plaintiff filed suit against her former husband and his current wife alleging defamation.  Specifically, plaintiff alleged that defamatory statements had been made in an email addressed to her and sent to her account – an account which was also regularly used by the former couple’s children. … Continue Reading

Court Orders Sharing of Non-Party’s Discovery Costs, Cites Lack of “Spirit of Cooperation or Efficiency” as “Controlling Factor”


DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery. After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI. The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope. Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

Must-haves for your e-discovery toolkit

Posted in NEWS & UPDATES

By: Julie Anne Halter, K&L Gates, Seattle This article appeared in the Puget Sound Business Journal the week of December 10-16. In 2007, according to a report from the International Data Corporation, the “digital universe” contained 281 billion gigabytes of data. That’s the paper equivalent of roughly 2.25 million pages per person. Commentators predict that by 2011,… Continue Reading

Court Holds there is a Reasonable Expectation of Privacy in the Contents of Emails


United States v. Warshak, 2010 WL 5071766 (6th Cir. Dec. 14, 2010)

In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails. Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP'” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

UK Introduces Practice Direction 31B Addressing the Disclosure of Electronic Documents

Posted in NEWS & UPDATES

Effective October 1, 2010, the UK has introduced Practice Direction 31B addressing in detail the disclosure of electronic documents.  According to the Ministry of Justice, this new Practice Direction “aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues.”  A comprehensive… Continue Reading

Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d)


Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

Court Enforces Agreement to Delete Defendants’ Confidential Materials Despite Cost


Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010) In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation.  Relying on the agreement, defendants provided access to “their core business… Continue Reading

Dissent to Order Adopting Mandatory Meet and Confer Rule Highlights Tension in Addressing Cost and Efficiency in E-Discovery


In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010) On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting… Continue Reading