Archive: 2011

1
Court Orders Government to Reproduce ESI, Discusses Need for Criminal Rules Addressing Electronic Discovery
2
Court Denies Motion to Exclude Inadvertently Produced Email, Rejects Argument that 26(b)(5)(B) Request for the Email’s Return Satisfied FRE 502(b)(3) Obligation
3
Special Master Considers Whether Attachments to Emails Must be Produced
4
Court Orders Defendant to Re-Post Facebook Profile Picture Showing Infringing Trade Dress to Allow Plaintiff an Opportunity to Print Chosen Posts
5
Upcoming Event: Cyber Threats, Forensic Investigation and Legal Tools – Cautions and Countermeasures
6
Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver
7
Court Declines to Excuse Production where Party’s Negligent Failure to Preserve Rendered Data “Less Accessible”
8
Upcoming Events
9
For Key Employees’ Bad Faith, Intentional Spoliation, Court Imposes Adverse Inference and Monetary Sanctions
10
Timing is Still Everything: Motion for Spoliation Sanctions Denied as Untimely

Court Orders Government to Reproduce ESI, Discusses Need for Criminal Rules Addressing Electronic Discovery

United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011)

Defendants were charged with several counts related to the distribution of cocaine.  In its disclosures, the Government produced thousands of pages of documents as well as audio recordings, none of which were text searchable.  Defendants sought reproduction.  Noting the lack of relevant criminal rules and discussing the requirements of Fed. R. Civ. P. 34, the court relied upon its inherent authority to order reproduction in native format or in a PDF format “suitable for searching.”

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Court Denies Motion to Exclude Inadvertently Produced Email, Rejects Argument that 26(b)(5)(B) Request for the Email’s Return Satisfied FRE 502(b)(3) Obligation

Williams v. District of Columbia, 806 F. Supp. 2d (D.D.C. 2011)

In this case, the court denied the defendant’s motion to exclude an inadvertently produced email where the defendant failed to satisfy the burden of establishing that reasonable steps were taken to prevent disclosure and where the defendant failed to promptly take reasonable steps to rectify the error.  In so holding, the court rejected the defendant’s argument that its actions pursuant to Rule 26(b)(5)(B) (i.e. sending a written request for the return of the email) were sufficient to discharge its obligations under FRE 502(b)(3).

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Special Master Considers Whether Attachments to Emails Must be Produced

Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011)

In this case, the Special Master considered the question of whether, under the particular circumstances of this case, emails and their attachments should be considered singular or separate entities and thus, whether they must be produced together.  While no definitive answer emerged, the Special Master’s consideration of the issues and resulting recommendation are illuminating, and were ultimately adopted by District Court Judge Shira Scheindlin.

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Court Orders Defendant to Re-Post Facebook Profile Picture Showing Infringing Trade Dress to Allow Plaintiff an Opportunity to Print Chosen Posts

Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011)

In this trademark infringement case, Plaintiff sought sanctions for defendants’ alleged spoliation of several categories of evidence, including the contents of the individual defendant’s Facebook page.  Specifically, plaintiff sought sanctions for the defendant’s failure to preserve his Facebook pages in their “original state” i.e., before they were taken down, and because he changed the Facebook profile picture (which had previously displayed the infringing trade dress at issue) without preserving the prior image.  The court held that while the spoliation was unintentional, it was nonetheless “somewhat prejudicial” and ordered the defendant to change the picture back for a brief time, to allow plaintiff to print whatever posts it found relevant.

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Upcoming Event: Cyber Threats, Forensic Investigation and Legal Tools – Cautions and Countermeasures

September 13, 2011
8:30 – 9:00 a.m. Check in and breakfast; 9:00 a.m. – 11:00 a.m. Program EST

K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222

Presenters: Thomas J. Smith, David A. Bateman, Daniel R. Miller

Please join us for a CLE presentation focused on the intersection of law and cyber-sleuthing, examining classic and newly emerging web-based attacks and the legal and forensic tools to combat them.  Learn about the evolving legal and technical landscapes regarding cyber threats, as well as resources available to protect against and prosecute rogue online activity, from members of the K&L Gates Cyber Security and e-Discovery and Analysis Technology (e-DAT) Groups.

Topics will include:

  • Recognizing and responding to ever-evolving cyber threats to business
  • Combining cyberforensic investigation and civil litigation tools to unmask and prosecute cyber-villains
  • Developing effective protections and policies for the use of web properties and portable devices to limit losses Considering the relationship between cyber security and e-discovery and records management issues  

Program registration is complimentary.  Click HERE to register.

Defendants’ “Completely Ineffective” Review Procedure and Failure to Rectify the Inadvertent Disclosure in a Timely Way Results in Finding of Waiver

Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)

The court held that privilege was waived as to inadvertently produced documents where defendants failed to take reasonable steps to prevent disclosure and failed to rectify the error in a timely way.  In so finding, the court cited defendants’ failure to conduct a final check before production, the failure of the process to protect any privilege (all privileged documents were produced), the nine months between production and discovery of the disclosure, and the failure to timely produce a privilege log, among other things.

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Court Declines to Excuse Production where Party’s Negligent Failure to Preserve Rendered Data “Less Accessible”

United States v. Universal Health Servs., Inc., No. 1:07cv000054, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011)

Here, the Commonwealth sought to avoid producing allegedly inaccessible information.  The court declined to excuse production, reasoning in part that it was the Commonwealth’s own “negligent failure to take steps to adequately preserve information” which rendered the information "less accessible."  Instead, the court indicated that it would order the backup tapes and forensic images be produced to defendants “for use by a commercial vendor” to retrieve the information “in a format usable by the Commonwealth” and that defendants would bear the costs, subject to a motion seeking reimbursement.

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Upcoming Events

Social Media Law (Sponsored by Law Seminars International)

September 8-9
Renaissance Seattle Hotel
Seattle, WA

During this two-day event, K&L Gates Partner Todd Nunn will participate in the presentation of “The Next New Hot Button Issue: Site Operator Responsibilities Arising from Use of Social Media as a Tool for Solving Street and Other Traditional Crimes,” a discussion of how law enforcement has moved beyond looking for criminal behavior in social media sites to using social medial as a tool for tracking down conventional criminals, and site operator responsibilities for preserving evidence.  Specifically, Todd will discuss obligations to avoid spoliation of evidence and the implications for data retention policies and user rights and preparing your staff to respond appropriately to subpoenas.

For more information, or to register for this event, click here.

eDiscovery for Oil and Gas (IQPC)

September 26-27
The Omni Houston Galleria Hotel
Houston, TX

K&L Gates Partner Todd Nunn will kick off this conference by leading the first Breakfast Workshop entitled “E-Discovery Case Law Developments and the Realities of an EPA Investigation” on Monday morning (September 26th), starting at 7AM.  Participants in this workshop will learn about the latest case law; what documents should be retained at all stages of an investigation; what, if any limits there are to e-discovery requirements in government investigations; and the latest strategies to overcome today’s e-discovery document retention challenges.  This workshop may be booked separately, if desired.

For more information, or to register for this workshop or to attend the entire conference, click here.

For Key Employees’ Bad Faith, Intentional Spoliation, Court Imposes Adverse Inference and Monetary Sanctions

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011)

The court found that defendant breached its preservation duty when key employees intentionally deleted ESI in bad faith.  Acknowledging Kolon’s (insufficient) attempts to place a litigation hold, the court declined to impose default judgment, but ordered sanctions in the form of attorneys’ fees, expenses and costs related to the motion, and an adverse inference instruction.  In so doing, the court rejected arguments that plaintiff suffered no prejudice and that because many of the files were recovered, there was no spoliation.

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Timing is Still Everything: Motion for Spoliation Sanctions Denied as Untimely

Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011)

In this case, the court denied plaintiff’s Motion for Sanctions for Spoliation of Evidence as untimely, citing the facts that it had been 14 months since the alleged spoliation was discovered, that discovery had already closed, and that trial was weeks away.  In reaching its conclusion, the court relied heavily on the summary of the law regarding the timeliness of spoliation motions laid out by the court in Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009).

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