Archive: November 26, 2008

1
Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver
2
Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to “Fix” Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed

Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver

Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008)

In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents.  Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents.

In February 2007, Rhoads began preparing for its anticipated litigation against Building Materials Corporation of America.  Realizing the likelihood of extensive electronic discovery, Rhoads directed its IT consultant to research software to assist with the electronic discovery effort.  The IT consultant eventually purchased Discovery Attender (or “Sherpa”) to perform the necessary electronic data searches.  Shortly thereafter, the IT consultant and his team began work to identify locations of potentially relevant information.

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Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to “Fix” Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed

Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008)

In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him.  Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive.  Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production.  No agreement was reached.  Rock Oil filed a motion to compel and the court granted the motion.  Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.

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