December 1, 2006 – Electronic Discovery Law

E-Discovery Amendments to the Federal Rules of Civil Procedure Go Into Effect Today

Dec 01 2006

The amendments to the Federal Rules of Civil Procedure concerning the discovery of “electronically stored information” go into effect today. The package includes revisions and additions to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35. The complete set of e-discovery amendments, with the accompanying Advisory Committee notes, is available here. Material regarding the amendments may be accessed on the U.S. Court’s Federal Rulemaking website at: http://www.uscourts.gov/rules/congress0406.html. Read More

Dorel Juvenile Group, Inc. v. DiMartinis, 2006 WL 3240116 (S.D. Ind. Sept. 29, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court denied plaintiff’s motion to compel production of an exact image of the hard drive of defendant’s personal computer and instead ordered that the examination of and production from defendant’s personal computer proceed on the terms spelled out in defendant’s responses to the motion to compel

Electronic Data Involved: PC hard drive

Elion v. Jackson, 2006 WL 2583694 (D.D.C. Sept. 8, 2006)

Dec 01 2006

Key Insight: Where defendant did not produce a particular email in response to interrogatories or document requests and it only came to light during a deposition a few days before the close of all discovery, court granted plaintiff’s motion for sanctions under Rule 37(c)(1) and ordered that defendant be precluded from offering in evidence any and all documents not timely produced during discovery, including the subject email, and from offering the testimony of any witness with respect to the email or any other documents not timely disclosed

Electronic Data Involved: Email

Waltzer v. Tradescape & Co., L.L.C., 819 N.Y.S.2d 38 (N.Y. App. Div. 2006)

Dec 01 2006

Key Insight: Defendants’ failure to comply with six separate court orders to produce personal documents and electronic documents in the possession of two law firms that had formerly represented defendants, coupled with inadequate excuses for those defaults, warranted striking of their answer

Electronic Data Involved: CDs containing electronic documents

Pioneer Res. Corp. v. Nami Res.Co., LLC, 2006 WL 1635651 (E.D. Ky. June 8, 2006)

Dec 01 2006

Key Insight: Defendant ordered to make good faith effort to locate responsive emails that were discussed at deposition; if defendant claims that such documents cannot be retrieved, defendant must file a written statement indicating all steps taken to obtain said emails and explain in detail why they could not be retrieved; defendant further warned that failure to comply could result in sanctions being imposed

Electronic Data Involved: Email

Barker Capital LLC v. Rebus LLC, 2006 WL 247114 (Del. Super. Ct. Jan. 12, 2006) (Unpublished)

Dec 01 2006

Key Insight: Court directed plaintiff’s counsel to submit an affidavit re attorneys’ fees and expenses incurred in connection with certain depositions and three motions to compel, where defendants produced certain corporate minutes and other documents after the close of discovery, and where defendants had failed to produce emails and other electronic documents from all available sources despite their general counsel’s earlier affidavit to the contrary

Electronic Data Involved: Emails and other electronic documents

United States v. Worthington, ARMY 20040396, 2006 WL 6625258 (A. Ct. Crim. App. Sept. 18, 2006)

Dec 01 2006

Key Insight: Emails properly authenticated by: name of alleged sender in email address (brian.worthing@us.army.mil), by testimony that recipient recognized return address and had previously received emails from the same, by testimony that the emails were consistent with the way appellant talked and by testimony that the emails were consistent with conversations and experiences of the alleged sender, e.g. the first email referred to defendant?s loss of his wallet in Kuwait, an event that was corroborated by a testifying witness

Nature of Case: Court martial

Electronic Data Involved: Emails

Durdin v. Kuryakyn Holdings, Inc., 2006 WL 6040466 (W.D. Wis. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where defendant never attempted to preserve email related to disputed products, did not impose email preservation directive and did not suspend policy of destroying all email after 30 days, but asserted that no relevant email was destroyed because its employees never exchanged emails on topics relevant to lawsuit, court declined to enter default judgment absent stronger proof of bad faith intent and reserved decision on adverse inference instruction; court would allow parties to explore with witnesses at trial whether they exchanged and then destroyed relevant email

Nature of Case: Patent infringement

Electronic Data Involved: Email

Leon v. IDX Sys. Corp., 2004 WL 5571412 (W.D. Wash. Sept. 30, 2004), affirmed, 464 F.3d 951 (9th Cir. 2006)

Dec 01 2006

Key Insight: Where plaintiff deleted whole directories without looking at their contents and designed drive wiping program to write over data indiscriminately after he had notice of the pendency of the litigation, court concluded that ?the extreme nature? of plaintiff?s bad faith behavior, combined with harm done to defendants, merited dismissal of plaintiff?s claims with prejudice; court further ordered plaintiff to pay defendants $65,000 to reimburse them for expenses incurred in investigating and litigating spoliation issue

Nature of Case: Retaliation under False Claims Act and other federal statutes, and Washington state law claims

Electronic Data Involved: Laptop

Optowave Co., Ltd. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006)

Dec 01 2006

Key Insight: Where, despite repeated warnings not to destroy relevant evidence, defendant allowed another party to reformat hard drives of his employees’ computers without first preserving relevant files contained on computers to be reformatted, resulting in loss of crucial electronic evidence, court found that adverse inference instruction was appropriate sanction

Nature of Case: Breach of contract

Electronic Data Involved: Email and customer files

Archive - December 1, 2006