Archive: February 2013

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Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act
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Upcoming Events
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Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)

Court Considers the “Persnickety, but Persistent Question” of What Qualifies as “Content” Under the Stored Communications Act

Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan. 23, 2013)

In this case, the court granted in part Defendant’s Motion to Quash upon finding that Google’s production of metadata related to communications containing certain search terms and production of subject lines would violate the Stored Communications Act (“SCA”).

Before the court in this case was “the persnickety, but persistent, question of exactly what qualifies as ‘content,’ whose disclosure by service providers is prohibited under the Stored Communications Act.”  Specifically, the court considered Defendant’s motion to quash a subpoena served by the plaintiff upon Google, Inc. to obtain discovery for use in a foreign proceeding.  The subpoena sought information related to “a number of electronic communications sent or received by certain Gmail accounts allegedly used by employees of Tibra,” including metadata related to messages containing certain search terms and the subject lines of those messages and others which met certain criteria (e.g. sent within a certain time frame, received by certain people).

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Upcoming Events

Compliance, Governance and Oversight Council, Summit 2013 – Stemming the Rising Tide of Data, Cost and Risk

March 14-15, 2013
The Resort at Pelican Hill
22701 South Pelican Hill Road
Newport Beach, CA

Join K&L Gates Partner, Martha J. Dawson and her fellow speakers for their discussion of “eDiscovery Law Today and Its Trajectory,” as part of a larger program entitled “Quantifying and Mitigating Information Risk.”

For more information about this program or others, or to register for this event, click here.

Washington Association of Public Records Officers (WAPRO) – Spring Conference

Tuesday April 30, 2013
Holiday Inn Downtown
3105 Pine Street
Everett WA 98201
8:45 AM – 4:30 PM

Join K&L Gates Partner, Julie Anne Halter and her fellow speakers for a discussion of “e-Discovery, Metadata & the PRA” (Public Records Act).

For more information visit the WAPRO website, here.

Court Awards Sanctions for Discovery Violations, Including Wrongful Certification Pursuant to Rule 26(g)

Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013)

In this case, the court imposed sanctions for discovery violations, including wrongful certification pursuant to Fed. R. Civ. P. 26(g) and violations of Fed. R. Civ. P. 34(b) addressing the appropriate format of production. Notably, the award was made jointly and severally against Plaintiff and counsel.

In response to each of Defendants’ Requests for Production, Plaintiff stated: “[Branhaven] will make the responsive documents available for inspection and copying at a mutually convenient time.”  The responses were signed by Plaintiff’s counsel pursuant to Rule 26(g), thus certifying that “the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.”  At the time of the response and certification, however, counsel had done little more than forward the requests to his client and had not yet been provided with any discovery responses.  Indeed, several of the primary sources for the ultimately produced data—two email servers and two laptops—had not yet been accessed, let alone searched.  Moreover, “counsel essentially admitted” that his response was intended to “buy time and technically comply with Rule 34” and also admitted that the “response was essentially meaningless in terms of identification and production of responsive documents.”

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