Archive: July 2006

1
Magistrate Approves Petition for $72,910 in Attorneys’ Fees and Costs Relating to Discovery Dispute
2
Court Denies Motion to Compel Return of Inadvertently Produced Privileged Materials
3
“Meeting the Demands of Document Retention — SOX Compliance, Risk Reduction and Information Management”
4
Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search
5
E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure – Panel Discussion
6
Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction
7
Court Finds Inadvertent Production of Privileged Spreadsheets Did Not Effect Waiver
8
New Evidence Rule 502 Addressing Privilege Waiver To Be Published for Public Comment in August 2006
9
Court Denies Motion to Compel Forensic Examination of Opposing Party’s Hard Drives
10
Court Denies Request for Forensic Examination of Opposing Party’s Hard Drives

Magistrate Approves Petition for $72,910 in Attorneys’ Fees and Costs Relating to Discovery Dispute

McDowell v. Gov’t of D.C., 2006 WL 1933809 (D.D.C. July 11, 2006)

In an earlier opinion, summarized here, Magistrate Judge John A. Facciola denied the plaintiff’s request for judgment to be entered against the defendant for various discovery failings. The court concluded that the discovery dispute could be adequately remedied by the imposition of attorneys’ fees and costs against defendants and the possibility of a jury instruction. In this opinion, the court evaluated plaintiffs’ fee petition and awarded plaintiff $72,910 in fees and costs.

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Court Denies Motion to Compel Return of Inadvertently Produced Privileged Materials

Marrero Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. Puerto Rico July 11, 2006)

In this opinion, the court used a five-factor test to conclude that the defendant’s “inadvertent” production of privileged materials effected a waiver.

On March 14, 2006, a third-party defendant in the case filed a motion for permission to file a counterclaim against Esso. Attached to the proposed counterclaim were several documents that were stamped with the prefix "VEGAC." Those documents had been disclosed by Esso during the months of November and December 2005. Three days later, Esso recognized the exhibits as privileged and claimed that they were inadvertently produced due to an "errant mouse click."

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“Meeting the Demands of Document Retention — SOX Compliance, Risk Reduction and Information Management”

This "Live, Interactive Teleconference with Q & A Session" is scheduled for Wednesday, July 26, 2006, from 10:00 – 11:30 a.m. Pacific Time.  Preston Gates partner Todd L. Nunn, will serve as a panelist serving practical strategies for reducing the risk associated with information management and preservation.  For additional details on this conference sponsored by Strafford Publications, Inc., click here.

Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search

Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)

Plaintiff Jonathan Peskoff sued to recover damages for financial injury resulting from defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP, and the fund’s related entities. NextPoint GP, LLC ("NextPoint GP") was the general partner of the venture capital fund. Both Peskoff and Faber were managing members of NextPoint GP. Peskoff alleged fraud and related claims.

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E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure – Panel Discussion

Preston Gates’ Helen Moure will be a panelist for this discussion forum scheduled from 12:15-1:15 PM on Tuesday, July 18, 2006, Rainier Square Conference Center, 1301 Fifth Avenue, Atrium Level 3 (between Fourth & Fifth and Union & University), Seattle, Washington.  The session will feature The Honorable Ronald J. Hedges, United States Magistrate Judge, Newark, New Jersey and is co-sponsored by the Federal Bar Association of the Western District of Washington and the King County Bar Association.

Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction

Washington Alder LLC v. Weyerhaeuser Co., 2004 WL 4076674 (D. Or. May 5, 2004)

In this recently published opinion, the court set forth its corrected order to show cause why sanctions should not be imposed on Weyerhaeuser for failing to preserve electronic and paper records potentially relating to antitrust litigation after June 8, 1999, when Weyerhaeuser was notified of a forthcoming antitrust claim. Plaintiff claimed that Weyerhaeuser apparently did not issue a records retention order until April 2003, and that documents potentially relevant to the case – both electronic and paper – may have been destroyed prior to then, either deliberately or by failing to take the steps necessary to preserve those documents. Plaintiff asked the court to instruct the jury that it may draw an adverse inference from the destruction of documents.

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Court Finds Inadvertent Production of Privileged Spreadsheets Did Not Effect Waiver

Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006)

This opinion describes the court’s in camera review of mathematical spreadsheets and other documents (“adverse impact documents”) inadvertently disclosed by the defendant, and concludes that no waiver was effected. All five relevant factors considered by the court weighed against finding waiver:

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New Evidence Rule 502 Addressing Privilege Waiver To Be Published for Public Comment in August 2006

At its June 22-23, 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed new Evidence Rule 502. The proposed new rule “opts for the middle ground” in determining whether inadvertent disclosure is a waiver, in accord with the majority view. Under the new rule, inadvertent disclosure of privileged or protected information during discovery would constitute a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. The proposed new rule will be published for public comment in August 2006.

A copy of proposed new Evidence Rule 502 and the accompanying Committee Note is available here as an attachment to the May 15, 2006 Report of the Advisory Committee on Evidence Rules.

Court Denies Motion to Compel Forensic Examination of Opposing Party’s Hard Drives

Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June 30, 2006)

In this sexual harassment action, a former police department employee asserted that her supervisor (Sgt. Penning) subjected her to unwelcome sexual advances and requests for sexual favors. This memorandum opinion grants Sgt. Penning’s motion to compel the production of original journals, notes, calendars, and other documents, so that defendant’s forensic document expert might subject these items to nondestructive testing. The court rejected as unreasonable the conditions proposed by plaintiff that her own expert, as well as perhaps plaintiff’s counsel, be present at all times during the forensic examination by defendant’s document expert. The court noted that, in general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. “In cases such as this, where purely nondestructive testing is proposed, the court generally allows the examiner to perform his or her work without being scrutinized by the opposing expert.” Further, the court observed that defendant’s expert would be required to file a Rule 26(a)(2) report disclosing all his findings and would be subject to deposition and cross-examination. “This provides sufficient safeguard for any legitimate concern by plaintiff regarding the expert’s methodology.”  

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Court Denies Request for Forensic Examination of Opposing Party’s Hard Drives

Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006)

In this order, the court denied defendant’s motion to allow the forensic examination of plaintiff’s computer hard drives. Although the court noted that, in some cases, it may be appropriate to allow a forensic examination of computer hard drives, it concluded that defendant’s unsupported accusations of misconduct did not justify the remedy sought: Read More

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