Archive: February 2011

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“[T]hrowing the Laptop Off a Building; Running Over the Laptop with a Vehicle; and Stating ‘If This Gets Us into Trouble, I Hope We’re Prison Buddies,’ Unquestionably Demonstrate Bad Faith.”
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Upcoming Events – Spring 2011
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“[M]etadata Maintained by the Agency as a Part of an Electronic Record is Presumptively Producible under FOIA, Unless the Agency Demonstrates that such Metadata is Not ‘Readily Reproducible.'”
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Court Rejects Distinction between “Original Thumb Drives” and Forensic Images of the Same, Orders Production
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U.S. Court Holds Litigant In Non-U.S. Suit Subject to American Discovery Rules

“[T]hrowing the Laptop Off a Building; Running Over the Laptop with a Vehicle; and Stating ‘If This Gets Us into Trouble, I Hope We’re Prison Buddies,’ Unquestionably Demonstrate Bad Faith.”

Daynight, LLC v. Mobilight, Inc., 248 P.3d 1010 (Utah Ct. App. 2011)

Appellants appealed the district court’s decision to enter default judgment against a third-party defendant for the destruction of evidence.  Appellants argued that the sanction was excessive and unduly harsh and that the Utah Rules of Civil Procedure require a finding of willfulness, bad faith or persistent dilatory tactics in order to impose sanctions.  Rejecting appellants’ reliance on Utah R. Civ. P. 37(b)(2), a rule “which typically pertains only to a delay in the production of evidence,” the Court of Appeals established that the appropriately applied rule, Utah R. Civ. P. 37(g), did “not require a showing of ‘willfulness, bad faith, or dilatory tactics’ or the violation of court order before a court may sanction a party” – including by ordering default judgment.  Moreover, the court noted that even if such a showing were necessary, the district court concluded that the third-party “chose to willfully and in bad faith destroy the laptop” as evidenced by employees’ recorded comments about “their destruction of ‘potential[ly] harmful evidence that might link [them] to any sort of lawsuit.’”  The Court of Appeals further concluded that the there could be no reliance on Rule 37(g)’s good faith exception (which is identical to the safe harbor provision in Fed. R. Civ. P. 37(e)) in light of certain “actions and words attributable to the third-party defendant after it filed suit, including throwing the laptop off the building; running over the laptop with a vehicle; and stating ‘[I]f this gets us into trouble, I hope we’re prison buddies’” – activities which “unquestionably demonstrate bad faith and a general disregard for the judicial process.”  Acknowledging that an order of default judgment was an “extreme” sanction, the court nonetheless found no abuse of discretion in light of the third-party defendant’s behavior and affirmed the order of the district court.

Upcoming Events – Spring 2011

The Knowledge CongressIs Your Head in the Clouds? Best Policies, Practices, and Risk Management for Cloud Computing and ASP Services (Live Webcast)

March 15, 2011
3 PM – 5 PM EST

K&L Gates Partner David Cohen will present at this in-depth discussion of the rise of cloud computing and its impact on records retention compliance, e-discovery, and other business considerations and the steps companies can take to manage the risks of cloud computing and ASP services.

To learn more or to register, click here.

Pennsylvania Bar Institute Halfway There: Beyond the Basics of Electronic Data Discovery

March 22, 2011
PBI Professional Development Conference Center
Heinz 57 Center
339 Sixth Ave., 7th Floor
Pittsburgh, PA
9:00 AM – 1:15 PM

K&L Gates Partner David Cohen will present on the topic of “The Complexities of E-Discovery Processing: New Pricing, Methodologies and Technologies.”

To learn more or to register, click here.

Washington State Bar AssociationNew Trends, Tools & Tips: Keeping Your Practice Current

March 24, 2011
WSBA CLE Conference Center
1501 4th Ave., Ste. 308
Seattle, WA 98101

K&L Gates attorney John Olson will present a discussion entitled, “Can you Keep a Secret? Maintaining Client Confidentiality in a Wired (and Wireless) World?” Topics to be addressed include ethical duties and technology habits; the web, the cloud, and metadata; and e-discovery and privilege in litigation.

To learn more or to register, click here.

“[M]etadata Maintained by the Agency as a Part of an Electronic Record is Presumptively Producible under FOIA, Unless the Agency Demonstrates that such Metadata is Not ‘Readily Reproducible.'”

Nat’l Day Laborer Org. Network v. United States Immigration and Customs Enforcement Agency, 2011 WL 381625 (S.D.N.Y. Feb. 7, 2011)

In this Freedom of Information Act (“FOIA”) action, a dispute arose regarding the proper format of production and, in particular, whether metadata was subject to production pursuant to plaintiffs’ FOIA requests.  Following substantial analysis of the issue, the court held that “certain metadata is an integral or intrinsic part of an electronic record” and, as such, is “‘readily reproducible’ in the FOIA context.”  (FOIA provides that “[i]n making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”  (Emphasis added.))  Addressing the question of which types of metadata are an intrinsic part of an electronic record, the court acknowledged that the answer “depends, in part, on the type of electronic record at issue . . . and on how the agency maintains its records” and determined that “the best way I can answer the question is that metadata maintained by an agency as part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily reproducible.’”

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Court Rejects Distinction between “Original Thumb Drives” and Forensic Images of the Same, Orders Production

Océ N. Am., Inc. v. MCS Servs., Inc., 2011 WL 197976 (D. Md. Jan. 20, 2011)

In this case, plaintiff sought to compel the production of forensic images of certain “flash” or “thumb” drives.  The images were created by a neutral third-party expert upon agreement of the parties following defendant’s refusal to produce the drives for inspection.  The original drives were then destroyed.  Defendant objected to production, arguing that plaintiff had previously requested access to the thumb drives, but not the forensic images, thus attempting to draw a distinction between the two.  The court rejected defendant’s argument reasoning that “if the original thumb drives were discoverable, Capsicum’s forensic images of the thumb drives must also be discoverable, and Océ need not propound a new discovery request for what amounts to the exact same information.”

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U.S. Court Holds Litigant In Non-U.S. Suit Subject to American Discovery Rules

The U.S. Court of Appeals for the Seventh Circuit recently ruled that a party in a lawsuit pending in Germany could be subjected to American discovery rules, even though the Court assumed that the discovery sought would not be allowed by the German court in which the case was pending.

To view the complete alert online, click here.

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