Archive - July 2006

McDowell v. Gov’t of D.C., 2006 WL 1933809 (D.D.C. July 11, 2006)

In an earlier opinion, summarized here, Magistrate Judge John A. Facciola denied the plaintiff’s request for judgment to be entered against the defendant for various discovery failings. The court concluded that the discovery dispute could be adequately remedied by the imposition of attorneys’ fees and costs against defendants and the possibility of a jury instruction. In this opinion, the court evaluated plaintiffs’ fee petition and awarded plaintiff $72,910 in fees and costs.

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Marrero Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. Puerto Rico July 11, 2006)

In this opinion, the court used a five-factor test to conclude that the defendant’s “inadvertent” production of privileged materials effected a waiver.

On March 14, 2006, a third-party defendant in the case filed a motion for permission to file a counterclaim against Esso. Attached to the proposed counterclaim were several documents that were stamped with the prefix "VEGAC." Those documents had been disclosed by Esso during the months of November and December 2005. Three days later, Esso recognized the exhibits as privileged and claimed that they were inadvertently produced due to an "errant mouse click."

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Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)

Plaintiff Jonathan Peskoff sued to recover damages for financial injury resulting from defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP, and the fund’s related entities. NextPoint GP, LLC ("NextPoint GP") was the general partner of the venture capital fund. Both Peskoff and Faber were managing members of NextPoint GP. Peskoff alleged fraud and related claims.

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Washington Alder LLC v. Weyerhaeuser Co., 2004 WL 4076674 (D. Or. May 5, 2004)

In this recently published opinion, the court set forth its corrected order to show cause why sanctions should not be imposed on Weyerhaeuser for failing to preserve electronic and paper records potentially relating to antitrust litigation after June 8, 1999, when Weyerhaeuser was notified of a forthcoming antitrust claim. Plaintiff claimed that Weyerhaeuser apparently did not issue a records retention order until April 2003, and that documents potentially relevant to the case – both electronic and paper – may have been destroyed prior to then, either deliberately or by failing to take the steps necessary to preserve those documents. Plaintiff asked the court to instruct the jury that it may draw an adverse inference from the destruction of documents.

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Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006)

This opinion describes the court’s in camera review of mathematical spreadsheets and other documents (“adverse impact documents”) inadvertently disclosed by the defendant, and concludes that no waiver was effected. All five relevant factors considered by the court weighed against finding waiver:

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Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June 30, 2006)

In this sexual harassment action, a former police department employee asserted that her supervisor (Sgt. Penning) subjected her to unwelcome sexual advances and requests for sexual favors. This memorandum opinion grants Sgt. Penning’s motion to compel the production of original journals, notes, calendars, and other documents, so that defendant’s forensic document expert might subject these items to nondestructive testing. The court rejected as unreasonable the conditions proposed by plaintiff that her own expert, as well as perhaps plaintiff’s counsel, be present at all times during the forensic examination by defendant’s document expert. The court noted that, in general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. “In cases such as this, where purely nondestructive testing is proposed, the court generally allows the examiner to perform his or her work without being scrutinized by the opposing expert.” Further, the court observed that defendant’s expert would be required to file a Rule 26(a)(2) report disclosing all his findings and would be subject to deposition and cross-examination. “This provides sufficient safeguard for any legitimate concern by plaintiff regarding the expert’s methodology.”  

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Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006)

In this order, the court denied defendant’s motion to allow the forensic examination of plaintiff’s computer hard drives. Although the court noted that, in some cases, it may be appropriate to allow a forensic examination of computer hard drives, it concluded that defendant’s unsupported accusations of misconduct did not justify the remedy sought: Read More