Archive - December 2004

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In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004)
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Laurin v. Pokoik, 2004 WL 2724767 (S.D.N.Y. Nov. 30, 2004)
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Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)
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Lakewood Eng’g & Mfg. Co. v. Lasko Prods., Inc., 2003 WL 1220254 (N.D. Ill. Mar. 14, 2003)
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Kormendi v. Computer Assoc. Int’l, Inc., 2002 WL 31385832 (S.D.N.Y. Oct. 21, 2002)
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Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)
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Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)
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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)
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Kadant v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003)

In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004)

Key Insight: Finding that the production of privileged email was not inadvertent, court held that accounting firm waived attorney-client privilege as to disclosed email, and as to 15 other emails on same subject matter

Nature of Case: Securities class action

Electronic Data Involved: Email

Laurin v. Pokoik, 2004 WL 2724767 (S.D.N.Y. Nov. 30, 2004)

Key Insight: Where plaintiff sought “any document which would evidence the true date when [a particular] entry was actually entered into the computer system,” court ruled that if plaintiff wishes to retain a forensic computer expert at her own expense, she may seek an order that defendant permit the expert to inspect the computer system

Nature of Case: Wrongful termination

Electronic Data Involved: Date of particular data entry in computer system

Landmark Legal Found. v. EPA, 272 F. Supp. 2d 70 (D.D.C. 2003)

Key Insight: EPA violated preliminary injunction that prohibited destruction of potentially responsive documents by reformatting hard drives and erasing or overwriting backup tapes containing potentially responsive email; EPA held in civil contempt and ordered to pay plaintiff’s reasonable attorneys’ fees incurred as a result of EPA’s contumacious conduct

Nature of Case: FOIA action

Electronic Data Involved: Hard drives and email stored on backup tapes

Lakewood Eng’g & Mfg. Co. v. Lasko Prods., Inc., 2003 WL 1220254 (N.D. Ill. Mar. 14, 2003)

Key Insight: Although plaintiff’s production of relevant email and other documents in electronic form after the close of discovery demonstrated lack of good faith effort to produce all requested discovery in timely manner, sanctions were not warranted

Nature of Case: Patent infringement

Electronic Data Involved: Email and other documents in electronic form

Kleiner v. Burns, 48 Fed. R. Serv. 3d 644, 2000 WL 1909470 (D. Kan. Dec. 15, 2000)

Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”

Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)

Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”

Nature of Case: Valuation dispute arising as result of two merger agreements

Electronic Data Involved: Email stored on monthly backup tapes

Katt v. Titan Acquisitions, Inc., 244 F. Supp. 2d 841 (M.D. Tenn. 2003)

Key Insight: Despite dismissal of all plaintiffs’ claims and entry of final judgment on the merits, court retained ancillary jurisdiction over plaintiffs’ motion for sanctions for spoliation of electronic evidence for purpose of holding a hearing before ruling on the motion

Nature of Case: Securities class action

Electronic Data Involved: Electronic evidence

Kadant v. Seeley Machine, Inc., 244 F. Supp. 2d 19 (N.D.N.Y. 2003)

Key Insight: Plaintiff’s motion for preliminary injunction granted; defendants enjoined from destroying, erasing or altering any of its computer-stored information that concerns any of plaintiff’s claims against them

Nature of Case: Trademark infringement

Electronic Data Involved: Computer data

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