Archive: 2010

1
For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law
2
Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program
3
Judge Scheindlin Amends Recent Pension Opinion
4
Failure to Test Keywords by Sampling a Prominent Consideration in Court’s Finding of Waiver
5
Court Order Provides Students, Parents Opportunity to View Images Captured by School-Issued Laptops
6
Upcoming Events
7
Court Orders Monetary Fine for Gross Negligence and Intentional Spoliation of ESI, Including Emails, Text-Messages, and Skype Messages
8
North Carolina Bar Association Issues Proposed Ethical Opinions Approving Use of SaaS, Providing List of Considerations to Minimize Risk
9
Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve
10
Delaware County Establishes New Complex Commercial Litigation Division, Requires Early Consideration of Electronic Discovery

For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law

Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010)

For defendant’s and counsels’ discovery violations discovered with the assistance of a special master, including failing to adequately search for responsive material and misrepresenting search efforts to the court, the court indicated a likelihood that it would find as a matter of law that an agency relationship existed between defendant and another entity implicated in the underlying accident claims.  Accordingly, a hearing was set to address the possible sanctions as well as the implications of counsels’ actions for their involvement with the case.

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Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program

Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program.  Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored Information were tested in practice.  Although limited in its geographic scope and number of participants, the results of phase one provide valuable insight into possible ways to better the current civil system.  The second of three phases will begin on July 1, 2010 and may be expanded to increase the number of cases and participating judges.

Too lengthy to summarize, the full report is available here.

Judge Scheindlin Amends Recent Pension Opinion

On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC.  The order provides important clarification regarding the scope of a party’s obligation to collect records from its employees.  The order states:

At page 10, lines 7-10, replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence.>.

A full copy of the order is available here.

Failure to Test Keywords by Sampling a Prominent Consideration in Court’s Finding of Waiver

Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010)

Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived.

In this case, the court addressed a number of issues, including the parties’ compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails.  The primary focus of this summary, however, is the court’s analysis of whether the privilege was waived as to one specific email, “the May 14th email”, and in particular, its analysis of the reasonableness of plaintiff’s precautions to prevent such disclosure.

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Court Order Provides Students, Parents Opportunity to View Images Captured by School-Issued Laptops

For anyone who hasn’t heard, a school district in Pennsylvania has recently come under fire for using the webcams on school-issued laptops to capture images of students both during and outside of school hours – about 56,000 of them, according to reports.  According to the complaint filed in this case, students and parents were not informed of the school’s ability to use the webcams.  In at least one instance, a student was called to the assistant principal’s office to discuss an image captured by the webcam on his laptop.  His family has now sued the district and hopes that other students will join them.  According to the school district, the webcams were intended for tracking lost or stolen computers.

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Upcoming Events

Washington State Bar Association: Washington Civil Procedure: Let’s Do it Right! – How to Navigate Washington’s Civil Rules for Your Client’s Benefit

May 26, 2010
8:25 AM – 4:45 PM
Red Lion Hotel, Emerald Ballroom II
1415 Fifth Avenue
Seattle, WA

K&L Gates Partner Todd Nunn will present a discussion entitled, “Electronic Discovery: What You Must Know to Correctly Steer Your Client”. Attendees can expect to learn more about e-Discovery best practices and privilege issues for e-discovery (and discovery in general) as well as what is happening with the state rules of civil procedure and the possibility they will be amended to incorporate electronic discovery.

For more information or to register, click here.

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Court Orders Monetary Fine for Gross Negligence and Intentional Spoliation of ESI, Including Emails, Text-Messages, and Skype Messages

Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378 (S.D.N.Y. 2010)

Upon finding that defendants spoliated relevant information, including emails, Skype messages, and computer logs, the court declined to order an adverse inference, to preclude defendants from the presentation of arguments implicating the discarded documents, or to order defendants to pay plaintiff’s costs, but ordered monetary sanctions in the amount of $10,000, after balancing “2FA’s litigation conduct with its status as a small corporation.”

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North Carolina Bar Association Issues Proposed Ethical Opinions Approving Use of SaaS, Providing List of Considerations to Minimize Risk

In what may be the first opinion of its kind, the North Carolina Bar Association has drafted a proposed ethical opinion addressing lawyers’ use of “software as a service” ("SaaS").  The proposed opinion concludes that lawyers “may contract with a vendor of software as a service provided the risks that confidential client information may be disclosed or lost are effectively minimized.”

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Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve

Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010)

In this case, the court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records and where that data was lost as the result of the flash drive’s failure.

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Delaware County Establishes New Complex Commercial Litigation Division, Requires Early Consideration of Electronic Discovery

Effective May 1, 2010, New Castle County, Delaware, has created a new division known as the Complex Commercial Litigation Division.  Available for prescribed categories of cases, including cases with an amount in controversy of more than $1 million (excluding certain types of actions, including, e.g., claims for personal, mental or physical injury), the new division adheres to principles that shall govern the administration of each case.  These principles include assigning the case to the same Panel Judge for all purposes through final disposition and compliance with Panel-established “uniform procedures” such as mandatory disclosures similar to those under the federal rules and the consideration of electronic discovery early in the case, among others.

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