Archive - 2006

1
Court Orders Party to Preserve Tapes of Recorded Phone Calls, and to Meet and Confer re Document Preservation Plan
2
Plaintiff’s Misstatements to Court and Failure to Preserve Electronic Financial Records Warrant Ultimate Sanction of Dismissal
3
Court Denies Spoliation Motion and Request for Evidentiary Hearing on Party’s E-Discovery Preservation Methods
4
Insufficient Preservation Efforts Warranted Monetary Sanctions, but not Adverse Inference Instruction
5
“Developing an Effective E-discovery Response Plan” Presented by Dawson
6
Party Not Required to Produce Financials in Searchable Electronic Format, In Part Because Requesting Party Had Refused Similar Request
7
Deadline for Comments on Proposed Evidence Rule 502 is February 15, 2007; Public Hearings to Take Place In January 2007 in New York and Phoenix
8
Court Approves Responding Party’s Limited Production for Overbroad E-Discovery Request
9
Court Denies Motion for Sanctions Based upon Defendant’s Failure to Maintain Certain Data, Noting that Plaintiff’s Preemptive “Spoliation Letter” Cannot Make “End Run” Around FRCP
10
Court Rules that Employment of De-Duplication Technology and Use of Search Terms are Reasonable Means of Narrowing Production

Court Orders Party to Preserve Tapes of Recorded Phone Calls, and to Meet and Confer re Document Preservation Plan

Del Campo v. Kennedy, 2006 WL 2586633 (N.D. Cal. Sept. 8, 2006)

Plaintiff sued the District Attorney of Santa Clara County (George Kennedy) and American Corrective Counseling Services, Inc. ("ACCS"), a private company that operates a Bad Check Restitution Program under contracts with district attorneys in California. The program is designed to return lost monies to the victim and provide rehabilitation for the offender. Plaintiff alleged that ACCS unlawfully threatens to prosecute program participants and attempts to collect fees not allowed under the statute.

In June 2006, plaintiff filed an ex parte request for an interim order requiring preservation of documents. Plaintiff claimed to have recently learned that ACCS routinely tapes phone calls and routinely destroys the tapes on a two week schedule. Although the court denied the request on procedural grounds, the court ordered ACCS to abstain from destroying any existing tapes.

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Plaintiff’s Misstatements to Court and Failure to Preserve Electronic Financial Records Warrant Ultimate Sanction of Dismissal

Ridge Chrysler Jeep, LLC v. Daimler Chrysler Servs. N. Am., LLC, 2006 WL 2808158 (N.D. Ill. Sept. 6, 2006)

In this opinion (which was issued September 6, 2006, not 2005), the court adopted the Report and Recommendation of the magistrate judge assigned to handle discovery disputes in the case, and dismissed the case with prejudice. One basis for dismissal related to plaintiffs’ failure to preserve and produce financial records stored on computers and misrepresentations about same.

Plaintiffs were two dealerships (“Midlothian” and “Marquette”) that filed a verified complaint alleging that Chrysler persisted in a “shocking corporate policy of blatant racial discrimination and redlining” by refusing to provide financing for African-American customers purchasing cars at the dealerships. Plaintiffs alleged violation of the Automobile Dealers’ Day in Court Act, as well as state law violations of the Illinois Motor Vehicle Franchise Act, tortious interference with prospective business advantage, and breach of contract. Mr. Gerald Gorman was the president and owner of both dealerships, and he personally verified the facts included in plaintiffs’ verified complaint.

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Court Denies Spoliation Motion and Request for Evidentiary Hearing on Party’s E-Discovery Preservation Methods

O’Brien v. Ed Donnelly Enters., Inc., 2006 WL 2583327 (S.D. Ohio Sept. 5, 2006)

In this suit brought under the Fair Labor Standards Act, defendants had produced over 8,000 documents consisting largely of plaintiffs’ work schedules and time punch and payroll records, including Time Punch Change Approval Reports (“TPCA Reports”) related to plaintiffs. The TPCA Reports were printed from defendants’ computer system, referred to as the “in-store processor” or “ISP.” The reports were printed automatically by the ISP as part of the closing paperwork each day, and were regularly kept and maintained by defendants as paper files. The information contained in the TPCA Reports was stored in the ISP in electronic form for 72 days. In addition, defendants backed-up the ISP nightly, using one of three rotating backup tapes. Each backup tape contained information for the preceding 72 days. The tapes were overwritten every three days so that, at most, the backup tapes combined contain information for the preceding 74 days. Defendants attested that the tapes were intended solely for disaster recovery.

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Insufficient Preservation Efforts Warranted Monetary Sanctions, but not Adverse Inference Instruction

Consol. Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006)

In this opinion, the magistrate judge considered plaintiff’s motion for sanctions based on spoliation of evidence, and concluded that, although adverse inference instructions were not warranted, defendant’s conduct in negligently failing to preserve electronic evidence “should not go unpunished.” Accordingly, the magistrate ordered that defendant bear plaintiff’s costs for re-deposing certain witnesses for the limited purpose of inquiring into issues raised by the destruction of evidence and regarding any newly discovered emails. The magistrate further granted plaintiff’s request to serve additional discovery relating to the electronic evidence which was not preserved, and awarded plaintiff the reasonable costs and attorneys’ fees incurred in bringing this motion and in investigating and attempting to obtain the discovery at issue.

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“Developing an Effective E-discovery Response Plan” Presented by Dawson

Preston’s Martha Dawson will be a featured speaker at the upcoming In-House Paralegal SuperConference in Philadelphia on October 4-5, 2006.  She will be emphasizing the importance of equiping yourself with the insight and knowledge necessary to implement effective strategies for quickly and efficiently complying with e-discovery requests.  Click here for further conference details.

Party Not Required to Produce Financials in Searchable Electronic Format, In Part Because Requesting Party Had Refused Similar Request

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

In this patent litigation, AMD moved to compel the production of certain financial documents, complaining that OKI had produced a disk containing 29,000 pages of financial materials which “were not in electronic format and not searchable.” In response, OKI expressed “outrage” that AMD was demanding exactly the kind of documents that AMD itself refused to provide. OKI stated it was forced to spend almost $25,000 to convert AMD’s documents into a searchable electronic format, after AMD produced its documents in unsearchable "tiff" format. Further, AMD had produced its materials “in a form that did not correspond to OKI’s infringement contentions and not in Microsoft Excel, as OKI had requested.”

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Deadline for Comments on Proposed Evidence Rule 502 is February 15, 2007; Public Hearings to Take Place In January 2007 in New York and Phoenix

As reported earlier, at its June 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 Evidence Rule 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). The rule has now been published for public comment, and is available here on the U.S. Court’s Federal Rulemaking website. Read More

Court Approves Responding Party’s Limited Production for Overbroad E-Discovery Request

Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006)

In this wrongful termination lawsuit, plaintiff sought production of “All emails with attachments sent or received by anyone at the school since 1-1-97.” Defendants objected that the request was vague, ambiguous, overly broad, unduly burdensome, oppressive, and would encompass matters not relevant to the litigation. Notwithstanding their objections, defendants subsequently produced all existing emails sent to or from the plaintiff, or pertaining to plaintiff’s performance during the time period at issue.

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Court Denies Motion for Sanctions Based upon Defendant’s Failure to Maintain Certain Data, Noting that Plaintiff’s Preemptive “Spoliation Letter” Cannot Make “End Run” Around FRCP

Frey v. Gainey Transp. Servs., Inc., 2006 WL 2443787 (N.D. Ga. Aug. 22, 2006)

This personal injury litigation arose from an accident involving plaintiff’s car and a tractor-trailer driven by defendant Rogers while he was employed by defendant Gainey Transportation. Ten days after the accident occurred and before any litigation had been filed, plaintiff’s counsel sent a letter to Tim Kelly, the Safety Director at Gainey, demanding that Mr. Kelly preserve numerous and varied documents and materials fully described in a fifteen-page attachment to the letter. Plaintiff’s counsel asserted that any “destruction or alteration” of the material would be considered “spoliation of evidence.” In this decision, the court denies plaintiff’s motion for sanctions based upon Gainey’s failure to preserve any “QualComm” satellite tracking information.

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Court Rules that Employment of De-Duplication Technology and Use of Search Terms are Reasonable Means of Narrowing Production

In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006)

In this securities class action, the parties had previously agreed on the entry of a stipulated order governing the discovery of material restored from backup tapes maintained by the defendant. (A copy of the Backup Tape Stipulation is available here.) Subsequently, plaintiffs learned from an undisclosed source that additional backup tapes existed which had not been produced, and moved to compel. The court issued an order dated April 3, 2006, which resolved that dispute, along with several other discovery disputes. (A copy of the court’s April 3, 2006 order is available here.) With respect to the newly discovered backup tapes, the court concluded that defendants had not intentionally hid the existence of the tapes, but that they should have been subject to the terms of the parties’ Backup Tape Stipulation. It continued:

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