Archive: 2010

1
Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production
2
Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery
3
Building Your e-Discovery Toolkit
4
Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”
5
Court Finds No Waiver of Privilege as to Emails Inadvertently Produced by Third Party and No Waiver Resulting from Use of Company Email Account and Laptop to Communicate with Counsel
6
Finding No Reasonable Expectation of Privacy in Plaintiff’s Social Networking, Court Compels Authorization to Disclose Current and Historical Content
7
Court Orders Mirror Imaging to Ensure Preservation During Ongoing Discovery But Declines to Compel Production of Plaintiff’s Computer to Defendants
8
The Sedona Conference® Publishes 2010 Update to its Commentary on Legal Holds and the Third Edition of The Sedona Conference Glossary
9
The Grimm Truth About Spoliation
10
Son’s Receipt of Privileged Emails Did Not Result in Waiver where Son was a “Necessary Conduit in Delivering” Attorney’s Emails to Plaintiffs

Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information.  Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years.  Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost.  Defendants also objected to the temporal scope of discovery.  Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery

Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery.  The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today.  Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.”  Those principles are:

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Building Your e-Discovery Toolkit

By Julie Anne Halter, K&L Gates

This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.

In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet.  Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006.  And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.

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Court Grants Motion to Strike Privileged Email Inadvertently Sent to Opposing Counsel Using “Reply All”

Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

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Court Finds No Waiver of Privilege as to Emails Inadvertently Produced by Third Party and No Waiver Resulting from Use of Company Email Account and Laptop to Communicate with Counsel

DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010)

In this case, the court addressed the question of waiver as to nine privileged emails.  As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production.  As to three other emails, the question of waiver turned on plaintiff’s use of his work computer to send the messages.  Relying on evidence that plaintiff’s employer did not believe such use would waive privilege, the court ruled privilege was not waived.

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Finding No Reasonable Expectation of Privacy in Plaintiff’s Social Networking, Court Compels Authorization to Disclose Current and Historical Content

Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)

Defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims.  The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns.

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Court Orders Mirror Imaging to Ensure Preservation During Ongoing Discovery But Declines to Compel Production of Plaintiff’s Computer to Defendants

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

In this case, both parties moved for spoliation sanctions alleging destruction of emails.  Defendants also sought to compel production of certain emails and plaintiff’s personal computer and storage devices to ensure she was not withholding evidence.  Both motions for sanctions were denied.  Despite denying the motion to compel production of plaintiff’s computer, the court ordered plaintiff to create a mirror image at defendants’ expense — to be left in safekeeping with her attorney — to ensure the preservation of evidence while defendants further investigated her preservation efforts.

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The Sedona Conference® Publishes 2010 Update to its Commentary on Legal Holds and the Third Edition of The Sedona Conference Glossary

The Sedona Conference®, a charitable research and education institute “dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights” recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, “reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process.”  The Commentary provides insightful discussion of the issues surrounding preservation obligations and legal holds, including eleven Guidelines “intended to facilitate compliance by providing a framework an organization can use to create its own preservation procedures.”  It is also a great resource for practitioners and other members of the legal community who recognize the need to stay abreast of changes in this important area.

The Sedona Conference Glossary, now in its third edition, is intended to served as a “tool to assist in the understanding and discussion of electronic discovery and electronic management issues…” and provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.

Both publications are available for download here.

The Grimm Truth About Spoliation

Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

For willful, bad faith discovery violations, including failure to implement a litigation hold, attempted deletion of ESI, actual deletion of ESI, and misrepresentations regarding the completeness of discovery, the Court recommended default judgment and a permanent injunction as to plaintiff’s copyright claim and ordered monetary sanctions and that defendants’ acts of spoliation be treated as contempt such that an individual defendant, the President of Creative Pipe, be jailed for not more than two years “unless and until” he pays the attorney’s fees and costs awarded.

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Son’s Receipt of Privileged Emails Did Not Result in Waiver where Son was a “Necessary Conduit in Delivering” Attorney’s Emails to Plaintiffs

Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email.  That is not always the case.  In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.

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