Archive: September 10, 2008

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House Passes Proposed Evidence Rule 502
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Defendant to Make “All Possible Efforts” to Produce Email from Personal Yahoo! Account; Failure to Timely Identify Account Warrants Sanctions

House Passes Proposed Evidence Rule 502

On September 8, 2008, the House of Representatives passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence.  The Senate had earlier approved the bill by unanimous consent on February 27, 2008.  Having passed in identical form in both chambers, the bill now awaits the signature of the President before becoming law.  The President is expected to sign the legislation in the next several weeks.

The legislation protects against inadvertent waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.  The new rule will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment. 

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Defendant to Make “All Possible Efforts” to Produce Email from Personal Yahoo! Account; Failure to Timely Identify Account Warrants Sanctions

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008)

In this breach of employment agreement and misappropriation of trade secrets case, plaintiff moved to compel production of emails from defendant’s personal Yahoo! account.  Plaintiff contended that it only recently learned of the account, and that defendant should have disclosed the account in response to an earlier discovery request.  Plaintiff argued that emails from the account contained highly relevant information crucial to the issues in the case.

Although defendant claimed he could not produce the emails because they had been destroyed by Yahoo!, he offered only a copy of a generic response from Yahoo! about deactivating accounts.  The court observed that Yahoo! may have a process for obtaining emails from deactivated accounts, and declined to accept defendant’s explanation that production was “impossible,” particularly given the important evidentiary value of the emails and the “feeble offering” by defendant in support of the contention.

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