Archive - December 1, 2004

1
Kormendi v. Computer Assoc. Int’l, Inc., 2002 WL 31385832 (S.D.N.Y. Oct. 21, 2002)
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Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)
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Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)
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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)
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Kadant v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003)
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Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)
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In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004)
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Jimenez v. Madison Area Technical Coll., 321 F.3d 652 (7th Cir. 2003)
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Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)

Key Insight: Despite dismissal of all plaintiffs’ claims and entry of final judgment on the merits, court retained ancillary jurisdiction over plaintiffs’ motion for sanctions for spoliation of electronic evidence for purpose of holding a hearing before ruling on the motion

Nature of Case: Securities class action

Electronic Data Involved: Electronic evidence

Kadant v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003)

Key Insight: Plaintiff’s motion for preliminary injunction granted; defendants enjoined from destroying, erasing or altering any of its computer-stored information that concerns any of plaintiff’s claims against them

Nature of Case: Trademark infringement

Electronic Data Involved: Computer data

Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)

Key Insight: Federal database containing firearms tracing and licensing data which was maintained by Bureau of Alcohol, Tobacco & Firearms was relevant to plaintiffs’ claims, and was not protected by any law enforcement privilege when produced subject to an order of confidentiality; motion to quash subpoena denied

Nature of Case: Negligence action against manufacturers, distributors, and retailers of weapon used in robbery

Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives

In re John Doe Proceeding, 680 N.W.2d 792 (Wis. 2004)

Key Insight: Supreme Court of Wisconsin quashed as overbroad a “John Doe” subpoena seeking all digital computer information or data maintained by the legislature’s technology services bureau, stored by or on behalf of certain named elected officials, any person who had ever been employed in their offices, as well as anyone who had ever been employed in the legislative caucuses for both parties or, in the alternative, the backup tapes from December 15, 2001, for the entire legislative branch of government

Nature of Case: Criminal investigation relating to political caucuses and actions of certain legislators

Electronic Data Involved: All digital computer information or data, and backup tapes for the entire legislative branch of government

Jimenez v. Madison Area Technical Coll., 321 F.3d 652 (7th Cir. 2003)

Key Insight: No abuse of discretion to dismiss suit with prejudice and impose sanctions against plaintiff under Rule 11, where it was determined that plaintiff had relied on falsified email and letters to support her discrimination claims

Nature of Case: Employment discrimination based on race, sex and ethnic origin

Electronic Data Involved: Email

Jackson v. Microsoft Corp., 211 F.R.D. 423 (W.D. Wash. 2002)

Key Insight: Plaintiff’s misconduct and discovery abuse (including obtaining email and proprietary information of employer, paying for such material, copying and using material to prepare case, and engaging in elaborate series of lies during depositions and evidentiary hearings re same) warranted dismissal with prejudice

Nature of Case: Employment discrimination

Electronic Data Involved: CDs and laptop computer hard drive

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