Archive - 2011

1
Upcoming Events: Summer 2011
2
Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration
3
Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)
4
Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format
5
Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012
6
Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed
7
Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act
8
Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith
9
The Sedona Conference® Publishes “Database Principles”
10
Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

Upcoming Events: Summer 2011

Executive Counsel Institute’s e-Discovery for the Corporate Market

June 16-17, 2011
Park Hyatt Hotel
Chicago

K&L Gates Partner Martha Dawson will moderate a discussion entitled “Effective Cost and Risk Containment Steps to Achieve Proportionality” on June 16th at 4:15 PM.

To learn more or to register, click here.

6th Annual Solo and Small Firm Conference (Sponsored by the Washington State Bar Association)

July 14-16, 2011
Ocean Shores Convention Center
Ocean Shores, WA

K&L Gates Staff Lawyer Beau Holt will present on the topic of “Ethics and Electronic Communication (Other than Social Media)” at 9:15 AM on Friday, July 15th.  Topics to be addressed include ethical duties and technology habits; the web, the cloud, and metadata; and e-discovery and privilege in litigation.

To learn more, click here.

Federal Circuit Addresses Dueling Rambus Opinions, Remands both for Further Consideration

Micron Tech., Inc. v. Rambus Inc., NO. 2009-1263, 2011 WL 1815975 (Fed. Cir. May 13, 2011) (Micron II); Hynix Semiconductor, Inc. v. Rambus Inc., Nos. 2009-1299, 2009-1347, 2011 WL 1815978 (Fed. Cir. May 13, 2011) (Hynix II)

Two federal courts analyzing nearly identical facts came to different conclusions regarding whether a party to both litigations had committed spoliation by destroying relevant documents.  Specifically, the courts differed in their determinations of when the duty to preserve arose, which hinged on when litigation was reasonably foreseeable.  One court issued significant sanctions and one court issued none.  On appeal, the Federal Circuit sought to clarify the analysis of when the duty to preserve was triggered and remanded both cases for further consideration.

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Court Orders Payment of E-Discovery Costs Pursuant to Title 28 U.S.C. § 1920(4)

Race Tires Amer., Inc. v. Hoosier Racing Tire, Corp., No. 2:07-cv-1294, 2011 WL 1748620 (W.D. Pa. May 6, 2011)

Following summary judgment, the Clerk of Court issued his Taxation of Costs which allowed for recovery of defendants’ e-discovery costs.  Plaintiffs objected, arguing that such costs were not taxable pursuant to Title 28 U.S.C. § 1920 and sought review of the issue.  Following careful analysis, the court upheld the determination of the Clerk of Court.

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Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

In this case, the court granted plaintiffs’ motion to compel Facebook’s participation in the creation of an ESI Protocol, despite Facebook’s resistance, and ordered that Facebook re-produce ESI in native format.  The court also prohibited Facebook’s use of Watchdox.com, a website on which Facebook had made available responsive documents, subject to its significant control (e.g., uploaded documents could not be printed and Facebook was able to track which documents had been reviewed and by whom).

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Phase Two of Seventh Circuit Electronic Discovery Pilot Program Extended to May 2012

The second phase of the Seventh Circuit’s Electronic Discovery Pilot Program, previously scheduled to end this month, has been extended to May 2012, according to the Interim Report on Phase Two.  According to the interim report, the decision to extend the program was made “early in Phase Two” to “allow a fuller evaluation of the Principles’s application.”  Moreover, the original principles of the program were revised “in response to the Phase One survey results” and Phase Two Principles were promulgated on August 1, 2010, to be applied for the duration of Phase Two.  Specifically, the revisions affected principles 2.01 (Duty to Meet and Confer on Discovery and to Identify Disputes for Early Resolution) and 2.06 (Production Format) and are available for review in the interim report on the program’s new website, www.discoverypilot.com.

A copy of the Interim Report on Phase Two is also available here.

Court Declines to Hold that Lack of Written Litigation Hold Allows Presumption that Relevant Evidence was Lost or Destroyed

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S(F), 2011 WL 1549450 (W.D.N.Y. Apr. 21, 2011)

Relying largely on the holding of Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., defendant argued that plaintiff’s failure to issue a written litigation hold and subsequent failure to produce three allegedly relevant emails allowed for a presumption that relevant evidence was lost, thereby warranting spoliation sanctions.  Declining to adopt such a holding, the court denied defendant’s motion for sanctions absent evidence that plaintiff was responsible for the destruction or loss of any relevant evidence.

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Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act

United States v. Salyer, Cr. No. S-10-0061 LKK [GGH], 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011)

“Unlike the usual discovery dispute—not enough produced—the dispute between the parties [in this case] involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.”

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Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith

Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09-6116-CIV, 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011)

Plaintiffs sought sanctions for defendants’ alleged spoliation of evidence, including email correspondence, communications with other body armor manufacturers, and internal communications, among other things.  Finding that plaintiffs failed to show that crucial evidence was destroyed in bad faith, as is required for an adverse inference in the 11th Circuit, the court denied plaintiffs’ motion for sanctions.

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The Sedona Conference® Publishes “Database Principles”

In its most recent publication (available now in its Public Comment Version) the Sedona Conference takes on another difficult issue of e-discovery:  the preservation and production of databases and database information.  The publication, The Sedona Conference® Database Principles: Addressing the Preservation & Production of Databases and Database Information in Civil Litigation, is intended to “provide practical guidance and recommendations to both requesting and producing parties” and to “simplify discovery in civil actions involving databases and information derived from databases.”  In furtherance of those goals, the publication includes an informative introduction to the issue of preserving and producing database information, a discussion of the application of some of the existing Sedona Principles, and a discussion of the six new Database Principles and their practical application.  The six new Database Principles are:

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Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

Northington v. H&M Int., No. 08-CV-6297, 2011 WL 663055 (N.D. Ill. Jan. 12, 2011); Northington v. H&M Int., No. 08 C 6297, 2011 WL 662727 (N.D. Ill. Feb. 14, 2011)

In this case, plaintiff sought sanctions for defendant’s failure to preserve and resulting failure to produce electronically stored information (“ESI”).  Upon finding that defendant’s efforts to preserve evidence had been “reckless and grossly negligent”, the magistrate judge recommended sanctions, including that defense counsel be required to conduct a thorough search for ESI and hard copy; that the jury be instructed regarding defendant’s failure to preserve; that defendant be precluded from defending itself by asserting an absence of discriminatory statements; and that defendant pay plaintiff’s reasonable costs and fees.  The recommendations were later adopted in full by the District Court.

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