Archive: November 5, 2008

1
K&L Gates Partner Receives E-Discovery Award at Annual Gala
2
Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay “All Reasonable Costs” Related to Discovery Dispute
3
Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

K&L Gates Partner Receives E-Discovery Award at Annual Gala

At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award.  David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards.  He is based in the Pittsburgh office and co-chair of the firm’s e-DAT practice group.

The panel of 5 Judges included several lawyers, a forensic expert and a U.S. District Court Magistrate.  The Awards Gala was a black tie event held at the Renaissance Hotel in Cleveland.  The Honorable Thomas J. Moyer, Chief Judge of the Supreme Court of Ohio, served as the Keynote Speaker.

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Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay “All Reasonable Costs” Related to Discovery Dispute

Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008)

In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions.  Specifically, plaintiffs alleged egregious spoliation of defendant Klein’s laptop.  Suspicion of spoliation initially arose when Klein resisted the court’s order to allow his laptop and other computers to be copied, and was later exacerbated because when the laptop was finally produced it was “hot to the touch and a screw was missing from its hard drive enclosure.”  In light of these facts, the court appointed a forensic expert to examine the evidence for spoliation and provide a detailed report.

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Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)

In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests.  One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement.  Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.

Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable.  Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce.  Metavante also argued that the code would provide little relevant information.  Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance.  The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.”  The court also noted that any confidentiality concerns were addressed by its previously issued protective order.

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