Archive: 2012

1
Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails
2
Court Sees “No Principled Reason to Articulate Different Standards for the Discoverability of Communications through Email, Text Message, or Social Media Platforms.”
3
Court Shifts Discovery Costs to Plaintiffs “At Least Until the Class Action Determination is Made”
4
In Kleen Products Litigation, Parties Stipulate that Predictive Coding is Not Required At This Time
5
Second Circuit Rejects “the Notion that a Failure to Institute a ‘Litigation Hold’ Constitutes Gross Negligence Per Se”
6
Establishing an Adequate Search & Why “Custodians [Cannot] be Trusted to Run Effective Searches of Their Own Files”
7
Failure to Disable Auto-Delete and To Follow Up with Recipients of Litigation Hold Results in Adverse Inference
8
Da Silva Moore: Defendant Files Opposition to Plaintiffs’ Objection to Denial of Motion for Recusal or Disqualification
9
“Take it e-sy”
10
Court Imposes Serious Sanctions for Discovery Violations, Orders Appointment of Special Master to Investigate Defendant’s Discovery Compliance

Inadvertent Production Results in Waiver of Attorney-Client Privilege as to 347 Pages of Emails

Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., No. 2:07-CV-116, 2012 WL 3731483 (S.D. Ohio Aug. 28, 2012)

In this case, the court held that privilege had been waived as to 347 pages of inadvertently produced emails where, among other things, Defendant failed to establish the reasonableness of the precautions taken to prevent the disclosure and “failed to take adequate measures to rectify or mitigate the damage of the disclosure.”

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Court Sees “No Principled Reason to Articulate Different Standards for the Discoverability of Communications through Email, Text Message, or Social Media Platforms.”

Robinson v. Jones Lang LaSalle Americas, Inc., No. 3:12-cv-00127-PK (D. Or. Aug. 29, 2012)

Here, Defendant sought to compel production of discovery in several categories including “all social media content involving [Plaintiff] since July 1, 2008” that revealed or related to Plaintiff’s “‘emotion, feeling, or mental state,’ to ‘events that could be reasonably expected to produce a significant emotion, feeling, or mental state,’ or to allegations in [Plaintiff’s] complaint.”

Addressing the categories requested, the court indicated that it saw “no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.”

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Court Shifts Discovery Costs to Plaintiffs “At Least Until the Class Action Determination is Made”

Boeynaems v. LA Fitness Int’l LLC, Nos. 10-2326, 11- 2644, 2012 WL 3536306 (E.D. Pa. Aug. 16, 2012)

Here, the court considered cost allocation in discovery prior to class certification and, taking into account Defendant’s already significant production and related expenditures, concluded that “where (1) class certification is pending, and (2) the plaintiffs have asked for very extensive discovery, compliance with which will be very expensive, that absent compelling equitable circumstances to the contrary, the plaintiffs should pay for the discovery they seek.”  Thus, Plaintiffs were ordered to bear the costs of additional discovery “at least until the class action determination is made.”

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In Kleen Products Litigation, Parties Stipulate that Predictive Coding is Not Required At This Time

Kleen Prods. LLC v. Packaging Corp. of Am., No. 1:10-cv-05711 (N.D. Ill. Aug. 21, 2012)

In the ongoing Kleen Products litigation in the Northern District of Illinois, the parties have been litigating the question of whether defendants should be required to utilize predictive coding to conduct their discovery review.  The Court has held several days of evidentiary hearings on this issue over the past several months and the parties have now entered into a stipulation, signed by the Court (Magistrate Judge Nan Nolan), wherein, among other things, the plaintiffs have agreed that they will not argue that predictive coding must be utilized with respect to any request for production served on any defendant prior to October 1, 2013.  After that, the parties reserve all rights, and agree to meet and confer regarding appropriate search methodologies for newly collected documents.  In light of this stipulation, no further evidentiary hearings on the matter are scheduled.

A copy of the stipulation is available here.

Second Circuit Rejects “the Notion that a Failure to Institute a ‘Litigation Hold’ Constitutes Gross Negligence Per Se”

Chin v. Port Authority of New York & New Jersey, — F.3d —, 2012 WL 2760776 (2d Cir. July 10, 2012)

On appeal, Plaintiff argued that Defendant’s failure to issue a litigation hold “amounted to gross, rather than simple, negligence” and that the District Court erred in denying a motion for sanctions in the form of an adverse inference.  Finding the District Court did not abuse its discretion, the Circuit Court rejected "the notion that a failure to institute a ‘litigation hold’ constitutes gross negligence per se.” 

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Establishing an Adequate Search & Why “Custodians [Cannot] be Trusted to Run Effective Searches of Their Own Files”

Nat’l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency, — F. Supp. 2d —, 2012 WL 2878130 (S.D.N.Y. July 13, 2012)

In this FOIA case, Judge Shira Scheindlin addressed the adequacy of the government’s search for information responsive to plaintiffs’ substantial FOIA request.

This case addresses plaintiffs’ request for information pursuant to the federal Freedom of Information Act (FOIA) and their assertions that defendants’ searches for such information were inadequate.  In its analysis, the court expressly acknowledged that “the search obligations under FOIA are not identical to those under the Federal Rules of Civil Procedure,” but nonetheless reasoned that “much of the logic behind the increasingly well-developed caselaw on e-discovery searches is instructive in the FOIA context . . . .” 

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Failure to Disable Auto-Delete and To Follow Up with Recipients of Litigation Hold Results in Adverse Inference

Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012)

In this case, the court sanctioned Defendant for the loss of relevant emails resulting from Defendant’s failure to halt the auto-delete feature of its proprietary email system and failure to appropriately follow up with employees subject to the litigation hold to ensure compliance.  As a sanction, the court ordered an adverse inference instruction allowing the jury to presume that the evidence lost was both relevant and favorable to the plaintiff.

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Da Silva Moore: Defendant Files Opposition to Plaintiffs’ Objection to Denial of Motion for Recusal or Disqualification

On July 16, 2012, Defendant MSLGroup filed its Memorandum of Law in Opposition to Plaintiffs’ Rule 72(A) Objection to Magistrate Judge Peck’s June 15, 2012 Opinion and Order (which denied Plaintiffs’ Motion for Recusal or Disqualification).  The memorandum is available here.
 

“Take it e-sy”

K&L Gates partner Julie Anne Halter was featured on a Q&A panel of litigators discussing e-disclosure as a transformative tool in litigation.  Panelists were asked:

With technology changing constantly, how can lawyers best use e-disclosure to help their clients through the litigation process?  Four experts debate some of the hot topics in this area.

Read their debate

First published by The Lawyer on July 16, 2012.

Court Imposes Serious Sanctions for Discovery Violations, Orders Appointment of Special Master to Investigate Defendant’s Discovery Compliance

E.E.O.C. v. Fry’s Elecs. Inc., No. C10-1562RSL (W.D. Wash. July 3, 2012)

In this case, the court twice imposed serious sanctions for Defendant’s discovery violations and ordered the appointment of a Special Master who was to be granted broad access to Defendant’s records and personnel to “review defendant’s document retention, search, and disclosure activities” and to “report to the court regarding any as-of-yet undiscovered discovery violations.”

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