July 2006 – Electronic Discovery Law

‘Clawback’ Agreements Lose Their Grip in Court

Jul 28 2006

In a July 24, 2006 National Law Journal article, Andrew Rhys Davies writes, "Reviewing electronic documents for privilege can be horribly time-consuming and expensive; and experience teaches that privileged material often slips through the net, as reviewers miss privileged communications buried in long e-mail chains or in invisible metadata. Against that background, this article examines how pending and proposed amendments to the Federal Rules of Civil Procedure and Federal Rules of Evidence seek to address these problems. "

Click here to read the entire article. Also seen on www.discoveryresources.org.

Court’s Finding that Rambus Committed Spoliation of Evidence Does Not Jeopardize Corporate America’s Use of Legitimate Document Retention Policies

Jul 27 2006

Samsung Elecs. Co., Ltd. v. Rambus, Inc., 2006 WL 2038417 (E.D. Va. July 18, 2006)

Samsung filed this action seeking a declaratory judgment, inter alia, that four patents held by Rambus were unenforceable by virtue of the doctrines of unclean hands, equitable estoppel, patent misuse, waiver and laches. The patents-in-suit were the same as the four patents-in-suit in Rambus, Inc. v. Infineon Technologies AG, No. CIV. A. 3:00cv524 (E.D.Va.) ("Rambus v. Infineon"). Rambus asserted counterclaims against Samsung, alleging infringement of two of the patents. Read More

Defendant’s Delay in Producing Responsive Email Warranted Monetary Sanctions

Jul 27 2006

Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL 2038534 (M.D. Fla. July 19, 2006)

After patent infringement litigation was resolved through a settlement agreement in which Fortin was granted a license to practice certain patents, Omega Patents filed this lawsuit to enforce the settlement agreement, believing that certain royalties from the patents were being under-reported. In this opinion, the court granted plaintiff’s motion for sanctions to be imposed against one of the defendants under Rule 37(d). Read More

Court Denies Motion to Dismiss Complaint as Discovery Sanction, Finding No Willful Disregard or Bad Faith

Jul 26 2006

Gen. Med., PC v. Morning View Care Ctrs., 2006 WL 2045890 (S.D. Ohio July 20, 2006)

Plaintiff’s complaint alleged claims for breach of contract and tortious interference arising out of a contract for General Medicine to provide medical care at six of Morning View’s residential health care facilities. In this opinion, the district court adopted the magistrate’s Report and Recommendation that defendant’s motion to dismiss complaint as a discovery sanction be denied. Read More

Court Denies Motion to Compel Plaintiff to Correlate Information Produced Electronically to Particular Document Requests

Jul 26 2006

Eastman Kodak Co. v. Sony Corp., 2006 WL 2039968 (W.D.N.Y. July 20, 2006)

In this case, the special master issued a Report and Recommendation recommending, inter alia, that Sony’s motion to compel Kodak to more specifically correlate information produced electronically via a computer server, CD-Roms and DVDs, to Sony’s document requests be denied. Sony objected to the Report and asked the court to direct Kodak to produce the documents in the form requested by Sony, or, in the alternative to produce documents in the form requested for certain of the more narrow document requests. Sony argued that if the Special Master’s Report and Recommendation were allowed to stand, it would be deprived of due process because it would be virtually impossible to find relevant documents "hidden" in the electronic equivalent of approximately 300 million pages of produced documents. Read More

Plaintiff’s Intentional and Bad Faith Discovery Misconduct Warrants Dismissal of Complaint

Jul 26 2006

Covucci v. Keane Consulting Group, Inc., 2006 WL 2004215 (Mass. Super. Ct. May 31, 2006)

In this age discrimination case, defendants moved to dismiss the complaint as a sanction for the intentional spoliation of material evidence by plaintiff Covucci. After conducting a hearing and taking testimony from Covucci, the court found that defendants had proved by clear and convincing evidence that plaintiff intentionally and in bad faith engaged in a pattern of conduct that encompassed the destruction of evidence relating to the creation of an email that was the central document in the case, provided false and misleading testimony at his deposition and at the evidentiary hearing, and that his conduct was calculated to interfere with the judicial system’s ability impartially to adjudicate the case. The court further found that the plaintiff’s misconduct had prejudiced the defendants in their ability to defend against these claims and that dismissal of the complaint was warranted. Read More

Are Litigators Ready for the New Meet-and-Confer Sessions?

Jul 25 2006

In an article in the National Law Journal, Carolyn Southerland writes, "Lawyers accustomed to what has been described by at least one federal district judge as "drive-by" meet and confers under the federal rules should get ready to park and prepare for an extended conversation. Whether one is a data producer (traditionally defendants) or a data requester (traditionally plaintiffs), the amendments to Rule 26(f) of the Federal Rules of Civil Procedure are going to profoundly affect parties’ discussions in "meet and confer" discussions concerning discovery.

For Luddite lawyers, these rule changes will require that they venture into a world that they dislike and perhaps on some level fear. But just as lawyers have survived past changes in the rules, they will survive these, too, and their clients and practices may well be better for it."

Click here for the full story.

Court Denies Discovery Related to Party’s Document Retention Policies and Computer Systems and Finds Hard Copy Production Adequate

Jul 25 2006

India Brewing, Inc. v. Miller Brewing Co., 2006 WL 2023396 (E.D. Wis. July 13, 2006)

In this case involving claims and counterclaims alleging breach of contract, fraudulent inducement, and negligent misrepresentation, the court ruled on plaintiff’s motion to compel discovery. Read More

Court Quashes Subpoena to Defendants’ Computer Forensics Consultant

Jul 24 2006

Trammell v. Anderson Coll., 2006 WL 1997425 (D.S.C. July 17, 2006)

In this employment discrimination case, plaintiffs alleged that plaintiff Dr. Jena Trammell, a tenured professor at defendant Anderson College, was subjected to a hostile work environment by another professor (Dr. Teitloff) and that the College retaliated against her for filing a claim with the EEOC. Read More

Summary Judgment Not Avoided By Reviving Past Discovery Disputes; Court Criticizes Plaintiff’s Overly Broad Pre-Suit Preservation Letter

Jul 21 2006

Turner v. Resort Condos. Int’l, LLC, 2006 WL 1990379 (S.D. Ind. July 13, 2006)

In this opinion, the court granted defendants’ motion for summary judgment on plaintiff’s pregnancy discrimination claim, and denied plaintiff’s motion for sanctions based on alleged discovery abuses. In ruling on the motion for summary judgment, the court found that plaintiff had not come forward with any evidence that raised a reasonable dispute about the reasons behind her termination. “She has noted the use of two font sizes on a single document and metadata suggesting that one of the [Reduction in Force] lists was modified after the lawsuit was filed. However, the most recent document production and the deposition testimony of RCI’s in-house information technology witness establish that at least nine emails confirmed Turner’s inclusion in the RIF before she told anyone at RCI that she was pregnant.” Read More

Archive - July 2006