Archive: October 2011

1
Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order
2
Pennsylvania Supreme Court To Tweet Rulings
3
District Court Allows Taxation of Costs Related to Electronic Discovery
4
Privilege Waived for Failure to take “Reasonable Means” to Preserve Confidentiality
5
Cloud Computing Case Clarifies Applicability of U.S. Privacy Law to Non-U.S. Nationals
6
Court Sanctions Defendants for Elaborate Spoliation, Declines to Sanction Misled Counsel Unaware of “What was Going on Behind the Scenes”

Court Acknowledges Calls for Caution when Applying “Proportionality Test” to Preservation, Denies Motion for Protective Order

Pippins v. KPMG LLP, No. 11 Civ. 0377 (CM)(JLC), 2011 WL 4701849 (S.D.N.Y. Oct. 7, 2011)

KPMG sought a protective order to limit the scope of its preservation obligation or to shift a portion of its preservation costs to plaintiffs.  At the time, the parties awaited ruling on plaintiffs’ Motion to Certify and KPMG was preserving more than 2,500 hard drives at a cost of more than $1,500,000.  Following the court’s analysis, the motion was denied.

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Pennsylvania Supreme Court To Tweet Rulings

The Administrative Office of Pennsylvania Courts issued a press release Tuesday announcing that the Supreme Court of Pennsylvania has established a Twitter feed to "increase online access to its rulings:" 

The specially designated site will provide instant notification of the online posting of most Supreme Court information, such as orders, new rules, opinions and concurring and dissenting statements written by the justices.  Anyone can sign-up to receive alerts from the Court’s Twitter page, which can be accessed at http://twitter.com/SupremeCtofPA.  “Follow Us On Twitter” links also will appear on the state court system’s Web site to take interested parties directly to the page.

To read the full press release, click here.

District Court Allows Taxation of Costs Related to Electronic Discovery

In re Aspartame Antitrust Litig., 817 F. Supp. 2d (E.D. Pa. 2011)

In this case, the court addressed plaintiffs’ motion to deny or reduce defendants’ bill of costs, and in particular their objections to the costs related to electronic discovery.  Recognizing that “taxing e-discovery is a new area of law where courts have diverged in their approaches,” the court denied plaintiff’s motion as to many of the costs at issue but did disallow or reduce some costs, including those incurred for the convenience of counsel.

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Privilege Waived for Failure to take “Reasonable Means” to Preserve Confidentiality

Pacific Coast Steel, Inc. v. Leany, No. 2:09-cv-12190-KJD-PAL, 2011 WL 4573243 (D. Nev. Sept. 30, 2011)

Plaintiffs purchased the assets of several companies in which Defendant Leany had an ownership interest and hired him as an Executive Vice President of Pacific Coast Steel (“PCS”).  Leany was eventually terminated and his computer seized.  The privileged documents at issue in this opinion were either on Leany’s work computer at the time of his termination or had been migrated to a PCS server from one of defendants’ servers that was purchased by the plaintiffs.  When litigation ensued, defendants sought the return of the privileged documents in plaintiffs’ possession and a protective order prohibiting inquiry into certain areas related to those documents.  The court declined to grant the protective order upon finding that defendants’ privilege was waived because of their failure to “take reasonable means to preserve the confidentiality of the privileged information.”

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Cloud Computing Case Clarifies Applicability of U.S. Privacy Law to Non-U.S. Nationals

By: Susan Altman, K&L Gates, Pittsburgh

The Ninth Circuit Court of Appeals, in its October 3, 2011 decision in Suzlon Energy Ltd v. Microsoft Corporation, has taken another step in defining the rights of people to protect their emails from being disclosed in civil court proceedings.  The question before the Suzlon court was whether a party can require a U.S. electronic communication service provider to produce emails stored on a U.S. server for the account of a non-U.S. national without regard to the safeguards and restrictions imposed by the Electronic Communications Privacy Act of 1986 (ECPA).  The court answered with a clear “no,” stating that the protections of the ECPA against unrestricted disclosure of emails by an electronic communication service provider apply to non-U.S. nationals as well as to U.S. citizens.

To continue reading, click here (and be taken to K&L Gates’ Legal Cloud Central Blog).

Court Sanctions Defendants for Elaborate Spoliation, Declines to Sanction Misled Counsel Unaware of “What was Going on Behind the Scenes”

United Cent. Bank v. Kanan Fashions, Inc., No. 10 CV 331, 2011 WL 4396912 (N.D. Ill. Mar. 31, 2011); United Cent. Bank v. Kanan Fashions, Inc., No. 10 C 331, 2011 WL 4396856 (N.D. Ill. Sept. 21, 2011)

In this case, the magistrate judge recommended sanctions against defendants for their bad faith spoliation of a relevant server where the evidence strongly suggested that defendants arranged for the sale of the server to company in Dubai, which resulted in the unavailability of its admittedly relevant contents.  The magistrate judge declined to sanction defendants’ attorneys, however, where the evidence indicated that they made efforts to ensure preservation but were misled by their clients and unaware “of what was going on behind the scenes.”

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