In this March/April 2005 article from Business Law Today, George L. Paul and Robert F. Copple outline steps for a business to follow in developing data life-cycle policies. Such policies are designed to ensure that necessary data is preserved (in connection with litigation and Sarbanes-Oxley, for example) yet the business does not “drown in its digital waste.”
Full text of the article can be found here.
Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., Inc., 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005)
Coleman (Parent) Holdings, Inc. (“CPH”) sued Morgan Stanley & Co., Inc. (“MS & Co.”) for fraud in connection with CPH’s sale of its stock in Coleman, Inc. to Sunbeam Corporation. Establishing whether MS & Co. had knowledge of Sunbeam’s fraudulent scheme was central to the case, and CPH sought access to MS & Co. documents, including email. Read More
Weiller v. New York Life Ins. Co., 2004 WL 3245345 (N.Y. Sup. Ct. Mar. 16, 2005) (Unpublished)
Plaintiff brought a putative class action in New York state court alleging that Unumprovident Corporation had engaged in an elaborate scheme to limit its liability to policyholders by denying meritorious claims based on economic factors having nothing to do with insureds’ actual qualifications under the policies. Plaintiff named Unumprovident as a defendant, as well as two other disability insurers. Eight other similar class actions are part of a Multi-District Litigation (“MDL”) pending in the United States District Court for the Eastern District of Tennessee, Unum’s home venue. In addition, six pending securities class actions accuse Unum of implementing the decade long scheme and seek damages for Unum’s alleged failure to maintain sufficient reserves to account for any resulting liabilities. Other related class actions and derivative shareholder suits are also pending against the defendant based on similar claims. Preservation orders were entered in the MDL case and in Keir v. UnumProvident Corp., which required UnumProvident to preserve 25 categories of documents dating back approximately 10 years, including substantially all computer disks and drives, and email files. Read More
An interesting article from PG Lewis & Associates’ March 2005 e-Newsletter on the recently released American Bar Association corporate counsel survey. Among other findings, the survey brings to light that more than “80 percent of Corporate counsel members are not aware of or familiar with the e-discovery ammendments.”
The original ABA survey report, ABA Digital Evidence Project Survey on Electronic Discovery Trends and Proposed Amendments to the Federal Rules of Civil Procedure, was published in February 2005.
Zubulake v. UBS Warburg LLC., 382 F.Supp.2d 536 (S.D.N.Y. 2005)
In her sixth opinion in this case, Judge Scheindlin ruled on the parties’ motions in limine, several of which related to e-discovery issues that were the topics of prior decisions:
1. Defendants moved to preclude the introduction of evidence regarding the court’s previous decisions in the case, including the imposition of sanctions on UBS. Granting the motion, the court agreed with defendants that the earlier decisions were irrelevant to plaintiff’s discrimination claims and would unfairly prejudice UBS. The court noted that the jurors would be told all they need to know through the evidence admitted at trial and through the court’s charge, and that there was no need to reference the court’s earlier decisions. Read More
Harrison v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., 2005 WL 517342 (E.D. La. Feb. 24, 2005)
In this case, a company (NovelAire) filed a complaint against its former employees (Harrison and Bucklin) for breach of agreement and breach of fiduciary duties, intentional interference with a contract, and violations of Lousiana’s unfair trade practices act. The same day it filed its complaint, NovelAire applied ex parte for the issuance of a pre-trial discovery order, entitled “Order for Expedited Discovery to Preserve Evidence.” The request was based, in part, on an email written by Bucklin that allegedly evidenced the employees’ intent to destroy discoverable evidence pertinent to NovelAire’s state court case. Read More
On February 11-12, 2005 in Washington, D.C., the Civil Rules Advisory Committee heard testimony from over 45 witnesses. This was the third and final set of public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. Following are some highlights of the testimony from day two of the hearing, when the committee heard from 13 witnesses. The complete testimony for this hearing, and the previous hearings, can be found here. Read More
On February 11-12, 2005 in Washington D.C., the Civil Rules Advisory Committee heard testimony from over 45 witnesses. This was the third and final set of public hearings on the proposed amendments to the Federal Rules of Civil Procedure relating to electronic discovery. Following are some highlights of the testimony from day one of the hearing, when the committee heard from over 30 witnesses. The complete testimony for this hearing, and the previous hearings, can be found here. Read More
In an article appearing in the February 18-24 issue of the Puget Sound Business Journal, Martha Dawson points out that case law regarding e-discovery is slow to develop and often confusing. Additionally, federal guidelines that apply to document discovery were originally drafted in 1939 prior to today’s computer environment. In the article, she discusses several issues under consideration as part of efforts to modernize e-discovery definitions and methodology within federal rules. Click here to view a .pdf of the article.
Lava Trading, Inc. v. Hartford Fire Ins. Co., 2005 WL 459267 (S.D.N.Y. Feb. 24, 2005)
At the conclusion of discovery, defendant moved for the imposition of sanctions on plaintiff, contending that plaintiff had systematically ignored its discovery obligations under the Federal Rules of Civil Procedure, violated a series of court orders directing it to produce documents within specified deadlines, and irremediably prejudiced defendant’s ability to prepare its case. Defendant sought dismissal of the complaint, or, in the alternative, an order (1) precluding plaintiff from presenting evidence on a series of specific topics, (2) authorizing defendant to place in evidence a quantity of emails produced in an untimely fashion by plaintiff and (3) requiring plaintiff to reimburse defendant for the costs of one deposition session and its current motion. Read More
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