March 3, 2008 – Electronic Discovery Law

Now Watch the Lawyers Blitz — The NFL destroyed the tapes. But it still hasn’t escaped the sack.

Mar 03 2008

Appearing in this week’s Legal Times, an article by K&L Gates partner Thomas J. Smith entitled: Now Watch the Lawyers Blitz — The NFL destroyed the tapes. But it still hasn’t escaped the sack. (Free registration required to view.)

In the game of football, the greatest quarterbacks share some common traits. Perhaps chief among them is an uncanny ability to anticipate the blitz. Sensing the onrush of defenders, the savvy quarterback will sometimes throw the ball away to avoid a loss of yardage.

When legal counsel anticipate a blitz, in the form of a lawsuit or an investigation, “throwing the ball away” is not an option. To the contrary, the destruction of potential evidence may constitute the improper act of spoliation.

Now football fans, including one U.S. senator, are asking whether the National Football League has done exactly that. Did the NFL destroy evidence of cheating by the New England Patriots to avoid a bigger blitz on the game?

On Super Bowl Sunday, Feb. 3, the Patriots nearly completed only the second perfect season in NFL history, losing by three points to the New York Giants. The Patriots’ season also had a less-than-perfect beginning, when the team was caught violating league rules by videotaping the New York Jets’ calling of defensive plays in a scandal dubbed “Spygate.”

The NFL demanded, and reportedly obtained, all tapes the Patriots still had of other teams’ defensive signals, including any that may have been made over the last seven years, during which time the Patriots won three Super Bowls. The league required the team to “certify” that it had produced all such tapes and retained no copies. After receiving the tapes and other materials, the NFL reviewed and then destroyed them, thereby eliminating the opportunity for any third party to examine the extent to which the tapes may have helped the Patriots to win games.

Read a copy of the full article here, reprinted with permission from Legal Times.

Attorneys Who Erroneously Relied on Client’s Defective Search Methods Were Merely Negligent and Not Acting in Bad Faith; Monetary Sanctions Imposed Against Client Only

Mar 03 2008

Finley v. Hartford Life and Acc. Ins. Co., 2008 WL 509084 (N.D. Cal. Feb. 22, 2008)

In this case, plaintiff claimed that defendant wrongfully terminated her disability benefits in violation of ERISA. Plaintiff also alleged that Hartford violated her right to privacy by causing its agent Dempsey Investigators to trespass onto her land and videotape her and her roommate through the kitchen window of plaintiff’s home.

When Hartford served its Rule 26(a)(1) initial disclosures, it indicated it was disclosing a copy of the administrative record related to plaintiff’s disability claim, and produced among other things copies of the claim file, electronic notes and surveillance videos conducted by Dempsey. Due to what Hartford calls an "administrative oversight," the videos produced did not contain the footage of plaintiff in her kitchen. Hartford later produced the “kitchen video” in a supplemental disclosure under Rule 26(e). Hartford argued that it complied with its usual procedure and that a reasonable search was done, and that as soon as it discovered that the full video had not been disclosed it complied with Rule 26(e) and supplemented its earlier disclosure.

Plaintiff sought sanctions, alleging that Hartford failed to disclose the kitchen video in violation of Rule 26(a); that Hartford’s attorney certified Hartford’s initial and incomplete disclosure in violation of Rule 26(g); and that Hartford failed to produce the kitchen video in response to a particular request for production. Plaintiff sought sanctions in the amount of the costs and attorney’s fees she spent taking the depositions of Dempsey witnesses and retaining the services of an expert. She argued that she took these depositions and engaged this expert solely because defendant did not produce the kitchen video in a timely manner, and that she would not have otherwise engaged the expert, or taken the depositions.

Archive - March 3, 2008