Archive: March 2008

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Bald Assertions of Burden Insufficient Under Rule 26(b)(2)(B); Ball Club Ordered to Produce Remaining Email Using Previously Agreed-Upon Search Terms
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ABA TechShow 2008 is March 13-15 in Chicago
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Court Finds Deleted Email “Not Reasonably Accessible”; No Duty to Search Backup Tapes for Emails of a Sexual Nature
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Now Watch the Lawyers Blitz — The NFL destroyed the tapes. But it still hasn’t escaped the sack.
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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

Bald Assertions of Burden Insufficient Under Rule 26(b)(2)(B); Ball Club Ordered to Produce Remaining Email Using Previously Agreed-Upon Search Terms

City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008)

The discovery dispute in this decision involved the City of Seattle’s request to have defendant Professional Basketball Club, LLC (“PBC”) search for and produce responsive emails for six of its eight members.  In January 2008, PBC produced approximately 150,000 emails from two members of PBC.  It objected to producing emails for the remaining six PBC members because such a search would “increase the universe exponentially” and would generally produce irrelevant documents.  The City moved to compel production of the requested emails.

The court first considered whether the requisite principal-agent relationship existed to establish that PBC had the legal right to obtain documents upon demand from its members.  The court analyzed PBC’s operating agreement under Oklahoma law, and concluded that the City had met its burden in establishing that PBC had “possession, custody, or control” over the at-issue documents for purposes of Fed. R. Civ. P. 34(a).

Next, the court found that the substance of the requested emails – information regarding the formation of PBC and the Sonics’ finances – may be relevant to the underlying issues.  Given the liberal discovery rules, the court declined to limit the City’s inquiry on relevancy grounds.  It stated that, whether such evidence warrants admissibility is a distinctly separate question that would be addressed at the appropriate time.

Finally, the court observed that the Federal Rules contemplate a specific requirement when a party objects to the production of electronically stored information, citing Fed. R. Civ. P. 26(b)(2)(B).  The court faulted PBC’s lack of specificity, stating that PBC had not explained why producing the emails at issue would be unnecessarily burdensome.  It continued:
 

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ABA TechShow 2008 is March 13-15 in Chicago

March 13-15, 2008
Hilton Chicago
720 South Michigan Avenue
Chicago, IL 60605

ABA TechShow 2008 offers more than 50 education and training sessions in 16 different tracks.  Sessions are designed to help people at various skills levels learn to make the most effective use of technology in their legal setting.  Whether you are an IT novice or a technocrat, a solo practitioner or a large firm lawyer, ABA TechShow provides programming options that are sure to challenge your thinking and expand your knowledge.

K&L Gates partner David R. Cohen will be participating in two sessions at this popular conference:

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Court Finds Deleted Email “Not Reasonably Accessible”; No Duty to Search Backup Tapes for Emails of a Sexual Nature

Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga. Feb. 25, 2008)

In this employment discrimination case, the court had previously ordered defendant to produce computer-generated reports of attempts by its employees to access adult websites at two of its branches during the relevant time period.  Although the court had denied plaintiffs’ request for email messages with adult content, it gave plaintiffs the option to file a motion for reconsideration after they had been given an opportunity to obtain evidence regarding defendant’s burden of production.  This opinion addresses plaintiffs’ renewed motion, in which they requested that defendant produce “at a minimum, documents showing any emails of a sexual or gender derogatory nature sent from 1998 through 2006.”

Evidence relating to defendant’s burden was as follows:

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

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

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.
 

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