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

Monthly Archives: August 2011

Upcoming Event: Cyber Threats, Forensic Investigation and Legal Tools – Cautions and Countermeasures

Posted in EVENTS

September 13, 2011 8:30 – 9:00 a.m. Check in and breakfast; 9:00 a.m. – 11:00 a.m. Program EST K&L Gates Center 210 Sixth Avenue Pittsburgh, PA 15222 Presenters: Thomas J. Smith, David A. Bateman, Daniel R. Miller Please join us for a CLE presentation focused on the intersection of law and cyber-sleuthing, examining classic and… Continue Reading

Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver


Thorncreek Apartments III, LLC v. Vill. of Park Forest, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)

The court held that privilege was waived as to inadvertently produced documents where defendants failed to take reasonable steps to prevent disclosure and failed to rectify the error in a timely way. In so finding, the court cited defendants’ failure to conduct a final check before production, the failure of the process to protect any privilege (all privileged documents were produced), the nine months between production and discovery of the disclosure, and the failure to timely produce a privilege log, among other things.

Court Declines to Excuse Production where Party’s Negligent Failure to Preserve Rendered Data “Less Accessible”


United States v. Universal Health Servs., Inc., No. 1:07cv000054, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011) Here, the Commonwealth sought to avoid producing allegedly inaccessible information.  The court declined to excuse production, reasoning in part that it was the Commonwealth’s own “negligent failure to take steps to adequately preserve information” which rendered the information… Continue Reading

Upcoming Events

Posted in EVENTS

Social Media Law (Sponsored by Law Seminars International) September 8-9 Renaissance Seattle Hotel Seattle, WA During this two-day event, K&L Gates Partner Todd Nunn will participate in the presentation of “The Next New Hot Button Issue: Site Operator Responsibilities Arising from Use of Social Media as a Tool for Solving Street and Other Traditional Crimes,”… Continue Reading

For Key Employees’ Bad Faith, Intentional Spoliation, Court Imposes Adverse Inference and Monetary Sanctions


E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011)

The court found that defendant breached its preservation duty when key employees intentionally deleted ESI in bad faith. Acknowledging Kolon’s (insufficient) attempts to place a litigation hold, the court declined to impose default judgment, but ordered sanctions in the form of attorneys’ fees, expenses and costs related to the motion, and an adverse inference instruction. In so doing, the court rejected arguments that plaintiff suffered no prejudice and that because many of the files were recovered, there was no spoliation.

Timing is Still Everything: Motion for Spoliation Sanctions Denied as Untimely


Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011) In this case, the court denied plaintiff’s Motion for Sanctions for Spoliation of Evidence as untimely, citing the facts that it had been 14 months since the alleged spoliation was discovered, that discovery had already closed, and that trial… Continue Reading