Archive: May 2011

1
Upcoming Events: Summer 2011
2
Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration
3
Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)
4
Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format
5
Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012
6
Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed

Upcoming Events: Summer 2011

Executive Counsel Institute’s e-Discovery for the Corporate Market

June 16-17, 2011
Park Hyatt Hotel
Chicago

K&L Gates Partner Martha Dawson will moderate a discussion entitled “Effective Cost and Risk Containment Steps to Achieve Proportionality” on June 16th at 4:15 PM.

To learn more or to register, click here.

6th Annual Solo and Small Firm Conference (Sponsored by the Washington State Bar Association)

July 14-16, 2011
Ocean Shores Convention Center
Ocean Shores, WA

K&L Gates Staff Lawyer Beau Holt will present on the topic of “Ethics and Electronic Communication (Other than Social Media)” at 9:15 AM on Friday, July 15th.  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, click here.

Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration

Micron Tech., Inc. v. Rambus Inc., NO. 2009-1263, 2011 WL 1815975 (Fed. Cir. May 13, 2011) (Micron II); Hynix Semiconductor, Inc. v. Rambus Inc., Nos. 2009-1299, 2009-1347, 2011 WL 1815978 (Fed. Cir. May 13, 2011) (Hynix II)

Two federal courts analyzing nearly identical facts came to different conclusions regarding whether a party to both litigations had committed spoliation by destroying relevant documents.  Specifically, the courts differed in their determinations of when the duty to preserve arose, which hinged on when litigation was reasonably foreseeable.  One court issued significant sanctions and one court issued none.  On appeal, the Federal Circuit sought to clarify the analysis of when the duty to preserve was triggered and remanded both cases for further consideration.

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Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011)

Following summary judgment, the Clerk of Court issued his Taxation of Costs which allowed for recovery of defendants’ e-discovery costs.  Plaintiffs objected, arguing that such costs were not taxable pursuant to Title 28 U.S.C. § 1920 and sought review of the issue.  Following careful analysis, the court upheld the determination of the Clerk of Court.

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Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

In this case, the court granted plaintiffs’ motion to compel Facebook’s participation in the creation of an ESI Protocol, despite Facebook’s resistance, and ordered that Facebook re-produce ESI in native format.  The court also prohibited Facebook’s use of Watchdox.com, a website on which Facebook had made available responsive documents, subject to its significant control (e.g., uploaded documents could not be printed and Facebook was able to track which documents had been reviewed and by whom).

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Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012

The second phase of the Seventh Circuit’s Electronic Discovery Pilot Program, previously scheduled to end this month, has been extended to May 2012, according to the Interim Report on Phase Two.  According to the interim report, the decision to extend the program was made “early in Phase Two” to “allow a fuller evaluation of the Principles’s application.”  Moreover, the original principles of the program were revised “in response to the Phase One survey results” and Phase Two Principles were promulgated on August 1, 2010, to be applied for the duration of Phase Two.  Specifically, the revisions affected principles 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) and 2.06 (Production Format) and are available for review in the interim report on the program’s new website, www.discoverypilot.com.

A copy of the Interim Report on Phase Two is also available here.

Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011)

Relying largely on the holding of Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., defendant argued that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Declining to adopt such a holding, the court denied defendant’s motion for sanctions absent evidence that plaintiff was responsible for the destruction or loss of any relevant evidence.

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