September 2006 – Page 2 – Electronic Discovery Law

Insufficient Preservation Efforts Warranted Monetary Sanctions, but not Adverse Inference Instruction

Sep 12 2006

Consol. Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D. La. July 19, 2006)

In this opinion, the magistrate judge considered plaintiff’s motion for sanctions based on spoliation of evidence, and concluded that, although adverse inference instructions were not warranted, defendant’s conduct in negligently failing to preserve electronic evidence “should not go unpunished.” Accordingly, the magistrate ordered that defendant bear plaintiff’s costs for re-deposing certain witnesses for the limited purpose of inquiring into issues raised by the destruction of evidence and regarding any newly discovered emails. The magistrate further granted plaintiff’s request to serve additional discovery relating to the electronic evidence which was not preserved, and awarded plaintiff the reasonable costs and attorneys’ fees incurred in bringing this motion and in investigating and attempting to obtain the discovery at issue.

“Developing an Effective E-discovery Response Plan” Presented by Dawson

Sep 11 2006

Preston’s Martha Dawson will be a featured speaker at the upcoming In-House Paralegal SuperConference in Philadelphia on October 4-5, 2006. She will be emphasizing the importance of equiping yourself with the insight and knowledge necessary to implement effective strategies for quickly and efficiently complying with e-discovery requests. Click here for further conference details.

Party Not Required to Produce Financials in Searchable Electronic Format, In Part Because Requesting Party Had Refused Similar Request

Sep 11 2006

OKI Am., Inc. v. Advanced Micro Devices, Inc., 2006 WL 2547464 (N.D. Cal. Aug. 31, 2006)

In this patent litigation, AMD moved to compel the production of certain financial documents, complaining that OKI had produced a disk containing 29,000 pages of financial materials which “were not in electronic format and not searchable.” In response, OKI expressed “outrage” that AMD was demanding exactly the kind of documents that AMD itself refused to provide. OKI stated it was forced to spend almost $25,000 to convert AMD’s documents into a searchable electronic format, after AMD produced its documents in unsearchable "tiff" format. Further, AMD had produced its materials “in a form that did not correspond to OKI’s infringement contentions and not in Microsoft Excel, as OKI had requested.”

Deadline for Comments on Proposed Evidence Rule 502 is February 15, 2007; Public Hearings to Take Place In January 2007 in New York and Phoenix

Sep 07 2006

As reported earlier, at its June 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed Evidence Rule 502 (Attorney-Client Privilege and Work Product; Limitations on Waiver). The rule has now been published for public comment, and is available here on the U.S. Court’s Federal Rulemaking website. Read More

Court Approves Responding Party’s Limited Production for Overbroad E-Discovery Request

Sep 06 2006

Lewis v. Sch. Dist. #70, 2006 WL 2506465 (S.D. Ill. Aug. 25, 2006)

In this wrongful termination lawsuit, plaintiff sought production of “All emails with attachments sent or received by anyone at the school since 1-1-97.” Defendants objected that the request was vague, ambiguous, overly broad, unduly burdensome, oppressive, and would encompass matters not relevant to the litigation. Notwithstanding their objections, defendants subsequently produced all existing emails sent to or from the plaintiff, or pertaining to plaintiff’s performance during the time period at issue.

Archive - September 2006