2005 – Page 9 – Electronic Discovery Law

Court Finds Failure to Preserve and Produce Material from Third Party Electronic Database Improper Grounds for Dismissal

Oct 20 2005

Procter & Gamble Co. v. Haugen, 427 F.3d 727 (10th Cir. 2005)

In 1995, the Proctor & Gamble Company and the Procter & Gamble Distributing Company (collectively “P&G”) sued Randy Haugen (“Haugen”) (an Amway Corporation distributor) and others under the Lanham Act and Utah common law. P&G alleged that Haugen had associated P&G with the Church of Satan via a voice mail message distributed to other Amway distributors, causing P&G to lose business. Read More

Court Enforces Clawback Provision; Producing Party to Pay Expenses for Deletion of Inadvertently Produced Email from Database

Oct 17 2005

Steadfast Ins. Co. v. Purdue Frederick Co., et al., 2005 WL 2433042 (Conn. Super. Ct. Sept. 7, 2005) (Unpublished)

In 2004, Purdue Frederick Co. (“Purdue”) produced email in connection with this difficult and document intensive insurance coverage dispute. About nine months following this production, Steadfast Ins. Co. (“Steadfast”) filed and served an affidavit opposing a motion for partial summary judgment which used this email in an exhibit. Purdue then gave notice that the email had been inadvertently produced and filed a motion seeking relief. Read More

General Motors Relies Upon Computer Search that Yields Incomplete Results; Court Orders $700,000 Fine, Strikes 3 Affirmative Defenses, and Restricts Challenge of Expert

Oct 13 2005

Serra Chevrolet, Inc. v. General Motors Corp., No. CV-01-VEH-2682-S (N.D. Ala. May 20, 2005) (Order Granting Motion for Sanctions)

Serra Chevrolet, Inc. (“Serra”) filed a complaint against General Motors Corp. (“GM”) on October 23, 2001. Allegations in this case include claims that GM improperly awarded an additional dealership to Serra’s chief competitor, Edwards Chevrolet, and unduly restricted Serra’s allocation of vehicles. Read More

E-Discovery Tops List of In-House Worries

Oct 11 2005

Fulbright & Jaworski’s annual survey of corporate counsel reflects a growing concern about the costs and consequences of electronic discovery. The 2005 litigation-trends survey found that e-discovery was the No. 1 new litigation-related burden for companies with revenues of more than $100 million. With e-mail and other digital data becoming more prevalent as evidence in lawsuits, effective record keeping is becoming a priority, and record retention policies and litigation hold policies are gaining in prevalence. Read the full 10.11.05 article by Petra Pasternak on CalLaw [subscription required.]

The Sedona Guidelines, September 2005

Oct 10 2005

The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age is now available for download. This document, the second published by The Sedona Conference Working Group Series, addresses “questions related to the management of electronic information in organizations as a result of business, statutory, regulatory and legal needs. The subject of information management and record retention is of critical importance in the digital age and the subject of many treatises and publications, yet the members and participants of the Working Group believed there was a need to distill existing thoughts and, in doing so, reach across the boundaries of legal compliance, records management and information technology.” To view and download the complete report, click here.

E-mail to Lawyers: E-discovery Rules on the Way

Oct 07 2005

In today’s ABA Journal E-report, Richard Acello reports on proposed changes to the Rules of Civil Prodecure that govern e-discovery which were recently approved by the Judicial Conference. The article includes commentary regarding implications of specific rule changes and can be found here.

Order to Produce Electronic Spreadsheets as Kept in the Ordinary Course Requires Production with Metadata Intact; Spreadsheet Cells to Remain Unlocked

Oct 03 2005

Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)

Shirley Williams sued Sprint/United Management Company in a collective action asserting that age was a determining factor in Defendant’s decision to terminate employment in connection with a reduction-in-force (“RIF”). Regular discovery conferences were held with Magistrate Judge Waxse, who entered orders in this decision concerning Defendant’s production of electronic spreadsheets. Read More

Access to Intranet Denied when Documents Provided in Searchable Form

Sep 30 2005

Fenster Family Patient Holdings, Inc. v. Siemens Medical Solutions USA, Inc., 2005 WL 2304190 (D.Del. Sept. 20, 2005)

Fenster Family Patient Holdings, Inc. and others (collectively “Fenster”) filed this lawsuit alleging infringement of various patents by Siemens Medical Solutions USA, Inc. and other Siemens entities (collectively “Siemens”). The patents were issued in connection with Digital Angiography and Digital Fluoroscopy (“DF”) technology. The Court addressed a number of motions in this opinion, including a renewed motion for access to Siemens’ Intranet. Read More

Locate Smoking Guns in Cryptic Messaging

Sep 29 2005

An article by Conrad Jacoby in the September issue of Law Technology News: Collecting documents in response to internal investigations or civil litigation discovery requests has always been a challenge. The problem is not so much gathering the documents (though volume can be problematic), but rather identifying the data repository nooks and crannies where important information may be stored. Most difficult of all: The collecting party must develop logical and reproducible procedures for identifying relevant documents and separating them from the vast amount of other unrelated material. One particular challenge is sorting through e-mail messages and short messages sent from portable devices. Click here to read the entire article.

Court Quashes Order Compelling Production of Computers Absent Evidence of Spoliation

Sep 29 2005

Menke v. Broward County Sch. Bd., 916 So. 2d 8 (Fla. Dist. Ct. App. 2005)

David Menke (“Menke”) is a high school teacher who was suspended for alleged misconduct. Allegations included claims that he had exchanged sexually-explicit emails with minor students and made derogatory comments about school personnel and operations with students. Menke requested a formal hearing, and in the proceedings the Broward County School Board (the “Board”) sought inspection of Menke’s home computers by its expert in the expert’s laboratory. Menke objected, but the administrative law judge granted the Board’s motion to compel production of the computers. Read More

Archive - 2005