Electronic Discovery Law

Legal issues, news and best practices relating to the discovery of electronically stored information.

1
Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)
2
Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y. Dec. 5, 2002)
3
Black & Veatch Int’l Co. v. Foster Wheeler Energy Corp., 211 F.R.D. 641 (D. Kan. 2002)
4
Binswanger of Pa., Inc. v. Tru Serv Corp., 2003 WL 22429059 (E.D. Pa. May 21, 2003)
5
Bertsch v. Duemeland, 639 N.W.2d 455 (N.D. 2002)
6
Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001)
7
BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)
8
Armstrong v. Amstead Ind., Inc., 2004 WL 1497779 (N.D. Ill. July 2, 2004)
9
Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)
10
Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)

Key Insight: Court ruled that defendant effected waiver of its attorney-client and work product privileges as to all documents on the same subject matter as the privileged documents it gave to plaintiff when she was president, since defendant’s failure to take any legal action to assert its privilege or otherwise to recover the documents for more than a year did not constitute “reasonable steps to reclaim the protected material.” Parties ordered to submit further briefing on the scope of the subject matter waiver.

Nature of Case: Former president of association sued for wrongful termination

Electronic Data Involved: Privileged emails

Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y. Dec. 5, 2002)

Key Insight: Various emails among claims handlers, supervisors, in-house counsel and outside counsel were protected from discovery by either attorney-client privilege, work product doctrine, or both; however, voluntary production of certain emails waived protections; inadvertent disclosure may waive protections if reasonable precautions were not taken to guard against inadvertent disclosure

Nature of Case: Insurance coverage

Electronic Data Involved: Email

Black & Veatch Int’l Co. v. Foster Wheeler Energy Corp., 211 F.R.D. 641 (D. Kan. 2002)

Key Insight: Plaintiff failed to comply with court order by making various misrepresentations about whether all original input files were produced and whether software program changed over time it was used; sanction in form of attorneys’ fees and costs warranted

Nature of Case: Construction litigation

Electronic Data Involved: Software program and input files used to make design calculations

Benton v. Allstate Ins. Co., 2001 WL 210685 (C.D. Cal. Feb. 26, 2001)

Key Insight: Plaintiff’s ex parte motion to continue summary judgment and for additional discovery of defendant’s computer system denied where prior Rule 56(f) continuance had been granted and no showing was made of specific evidence expected to be elicited

Nature of Case: Insureds sued insurer for breach of covenant of good faith and fair dealing and related torts

Electronic Data Involved: Insurer’s claims-handling computer system

BASF Fina Petrochemicals Ltd. P’ship v. H.B. Zachry Co., 2004 WL 2612835 (Tex. App. Nov. 18, 2004)

Key Insight: Court awarded non-party its costs of production, but ruled that non-party was not entitled, under either Tex. R. Civ. P. 205.3 or 176.7, to recover attorneys’ fees incurred in responding to subpoena, noting that non-party obtained legal advice to protect its own interests, not to facilitate compliance with subpoena

Nature of Case: Construction litigation

Electronic Data Involved: Electronic data

Armstrong v. Amstead Ind., Inc., 2004 WL 1497779 (N.D. Ill. July 2, 2004)

Key Insight: Court denied plaintiffs’ motion for sanctions stemming from defendants’ failure to disclose various relevant documents until after the close of fact discovery and plaintiffs’ expert disclosures, though defendants provided the material to their experts; instead, plaintiffs’ experts would be allowed to supplement their reports to address the belatedly-produced material

Nature of Case: Class action alleging violations of ERISA

Electronic Data Involved: Spreadsheets and reports

Arista Records, Inc. v. Sakfield Holding Co. S.L., 314 F. Supp. 2d 27 (D.D.C. 2004)

Key Insight: Since defendant had destroyed electronic records and failed to produce the very records that would provide evidence of its contacts within D.C., even after being ordered by court to do so, court denied defendant’s motion to dismiss for lack of personal jurisdiction; court declined to impose any sanctions, but said plaintiff could bring a motion in the future

Nature of Case: Copyright infringement and related claims

Electronic Data Involved: Electronic information on servers

Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Key Insight: Plaintiff’s use of Cyberscrub data wiping software prior to court-ordered inspection of her computer and after agreeing on the record that she would not purge her hard drive or delete any documents, and her misrepresentations about age of hard drive, were not sufficiently egregious to warrant dismissal but did warrant an adverse inference instruction

Nature of Case: Sexual harassment and whistleblower claims by former employee

Electronic Data Involved: Hard drive of plaintiff’s personal computer

Copyright © 2022, K&L Gates LLP. All Rights Reserved.