May 2005 – Electronic Discovery Law

Supreme Court Overturns Arthur Andersen’s Conviction for Destroying Enron-Related Documents

May 31 2005

Arthur Andersen LLP v. United States, 125 S.Ct. 2129 (2005)

Arthur Andersen, Enron’s auditor, instructed employees to destroy documents pursuant to its document retention policy when Enron’s financial problems became public in 2001. Arthur Andersen was convicted under USC ?߬ߠ1512(b)(2)(A) and (B) in connection this destruction. The conviction was affirmed by the Fifth Circuit, but today was reversed by the Supreme Court because jury instructions failed to convey properly the elements of a corrupt persuasion conviction under ?߱512(b). Read More

Proposed Amendments to Federal Rules of Civil Procedure Submitted to Standing Committee

May 27 2005

On May 27, 2005, the Civil Rules Advisory Committee submitted to the Standing Committee on the Rules of Practice and Procedure a comprehensive package of proposed amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information, including revisions of Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The submission can be found here.

The Standing Committee will consider the proposals at its June 15-16, 2005 meeting. If all the remaining steps of the process proceed on schedule, the rules amendments would go into effect in December 2006.

Perelman Awarded an Additional $850 Million in Punitive Damages in Coleman v. Morgan Stanley

May 19 2005

These damages bring the total awarded Perelman to $1.45 billion in this landmark case where Judge Maas ruled that Morgan Stanley had conspired with Sunbeam to defraud Perelman. Judge Maas’ ruling was due to frustration caused by Morgan Stanley’s failure to produce email.

In his closing argument, Morgan Stanley attorney Mark Hansen said that the failure to produce email was due to error and was not indicative of efforts to conceal evidence.

Click here for the story from Reuters.

Perelman Awarded $604.3 Million in Coleman v. Morgan Stanley

May 16 2005

A Florida jury awarded these damages in connection with Morgan Stanley helping Sunbeam to falsely inflate its finances. An award for punitive damages is still expected. Morgan Stanley said it would appeal, and additional discussions with a mediator are planned.

Judge Maas had instructed the jury to assume that Morgan Stanley helped Sunbeam inflate its earnings, so Perelman only had to establish detrimental reliance. This instruction had been issued because Morgan Stanley failed to produce email.

More detail can be found here on Bloomberg’s news site.

Gillette: Workers may have deleted e-mail

May 16 2005

Gillette Co. said it is “possible” that senior executives deleted e-mail that may have included discussions of the company’s proposed $57 billion acquisition by Procter & Gamble Co. that are being sought by the Massachusetts regulators.

The company disclosed in a filing in Massachusetts Superior Court Monday that Gillette employees whose e-mail may be subject to a subpoena from Secretary of State William F. Galvin “simply did not retain e-mail and, instead, had a regular practice of deleting it.”

Click here for the complete story from The Boston Globe, May 11, 2005.

Archive - May 2005