2006 – Page 30 – Electronic Discovery Law

National Archives and Records Administration Revises Regulations Regarding Management and Disposition of Very Short-Term Temporary Email

Mar 07 2006

The National Archives and Records Administration (“NARA”) announced that it will be revising regulations to provide for appropriate management and disposition of very short-term email by allowing management of such records within the email system. Disposition of Electronic Mail Records with Short Retention Periods, Final Rule, 71 Fed. Reg. 8806-8808 (Feb. 21, 2006) (to be codified at 36 C.F.R. pt. 1234). The effective date for changes is March 23, 2006. Read More

Defendant Ordered to Produce Documents in Native File Format and with Original Metadata

Mar 07 2006

Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F. Supp. 2d 1121 (N.D. Cal. 2006)

Nova Measuring Instruments Ltd. (“Nova”) filed a motion to compel production of documents pursuant to Patent L.R. 3-4 in this patent infringement matter adverse Nanometrics, Inc. (“Nano”). There was disagreement as to whether Nano was required to produce documents in native format with original metadata, and whether the documents produced are sufficient to show the operation of each aspect or element of the claims identified in Nova’s Patent L.R. 3-1(c) chart. Read More

After-Acquired Evidence that Employee Misused Laptop in Violation of Company Policy and Erased Data Survives Summary Judgment

Mar 06 2006

Olson v. Int’l Bus. Mach.s, 2006 WL 503291 (D.Minn. Mar. 1, 2006)

John Olson (“Olson”) sued International Business Machines (“IBM”) in connection with his termination of employment. Claims included employment discrimination in violation of the Minnesota Human Rights Act, violation of the Family Medical Leave Act of 1993, and intentional infliction of emotional distress. Health care providers found that Olson suffered from mental health problems and had thoughts of harming his immediate supervisor, Shelley Green. On June 18, 2004, Olson was dismissed following an investigation by IBM’s violence assessment team. Read More

Production of Computer Printouts in Response to Interrogatories and Production Requests Not Deemed Unauthorized Data Dump

Mar 06 2006

Jackson v. City of San Antonio, 2006 WL 487862 (W.D.Tex. Jan 31, 2006)

In this case, which involves claims of entitlement to FLSA overtime wages, plaintiffs filed a motion to compel pursuant to Federal Rule of Civil Procedure 37(a). Plaintiffs alleged, in part, that defendants’ production of computerized pay and time records in response to interrogatories and production requests constituted an “unauthorized ‘data dump.'” Plaintiffs also claimed that the records are “unhelpful, unusable, and nonresponsive” because field descriptors are missing. Read More

Advisory Committee on Federal Evidence Rules to Consider New Rule Codifying Waiver of Privilege by Disclosure

Mar 01 2006

Pike and Fischer’s Electronic Evidence Update, a service of Pike and Fischer Digital Discovery and e-Evidence, reported today that the Advisory Committee on the Federal Rules of Evidence will consider a new rule during a meeting on April 24. Proposed Federal Rule of Evidence 502 codifies waiver of privilege and work product protection by disclosure, and includes exceptions to such waiver. An exception for inadvertent disclosure addresses the concern that the cost of privilege review has become prohibitive in cases involving electronic discovery. The rule also codifies the controlling effect of (1) court orders regarding the preservation or waiver of privilege or work product protection and (2) party agreements regarding the effect of disclosure. Court orders are made applicable to non-parties, and party agreements regarding the effect of disclosure are made binding on the parties to the agreement but not on other parties unless the agreement is incorporated into a court order. Read More

Moure Featured in “Ask the Compliance Expert” Column

Mar 01 2006

Preston Gates partner Helen Bergman Moure was recently featured as the expert on ComplianceResources.org’s “Ask the Compliance Expert” column. The interview focuses on document retention and e-discovery.

In the Q&A, Helen notes that some of the major challenges facing corporations include the “volume of electronic data being created and stored by individual users, education of employees about the importance of effective document retention practices, and implementation of effective policies that balance business needs with legal requirements.”

In the interview, she also addresses litigation hold procedure and provides some high-level recommendations for helping a company prepare for document productions and requests related to litigation or a governmental investigation.

Click here to read the full interview.

Court Grants Preliminary Injunction Requiring Plaintiff to Return Laptop, Computer Files and Email to Former Employer After Forensic Firm Removes Plaintiff’s Privileged Documents at Her Expense

Feb 23 2006

Henry v. IAC/Interactive Group, 2006 WL 354971 (W.D. Wash. Feb. 14, 2006)

In this employment discrimination/trade secrets case, defendants obtained a preliminary injunction that granted the following injunctive relief: Read More

Magistrate Denies Stay of Order Compelling Forensic Review of Non-Party’s Computer Systems

Feb 23 2006

Electrolux Home Products, Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006)

In this case, third parties that had been subpoenaed by the defendant (‘respondents”) moved to stay enforcement of the magistrate judge’s Decision and Order Enforcing Subpoenas (referred to as the “Confirmation Decision”), and petitioned for a Certificate of Interlocutory Appeal. The Chief Magistrate Judge wrote the opinion. Read More

Judge Lectures Counsel on Request to Make Documents ‘Disappear’

Feb 21 2006

From the 2/14 issue of the New York Law Journal: “A federal judge in Manhattan has blasted a pair of private equity executives, both of whom are also lawyers, for asking him to make allegations against them “disappear” after the settlement of a suit that accused them of “fundamentally dishonest behavior.””

This story is also linked to at discoveryresources.org.

Email Exchanges Between Counsel Did Not Satisfy “Meet and Confer” Requirement in Case Management Order

Feb 17 2006

Liebel-Flarsheim Co. v. Medrad Inc., 2006 WL 335846 (S.D. Ohio Feb. 14, 2006)

In this patent infringement case, the court had issued a Case Management Order that set scheduling deadlines and required the parties to confer and cooperate on certain tasks necessary to the orderly conduct of the litigation. Discovery became very contentious, and the court issued an order to show cause requesting the parties to explain why the parties and/or their counsel should not be sanctioned for failing to comply with the Case Management Order. Although the court decided it could not hold either party in contempt, it advised that the parties’ exchange of emails and written correspondence did not satisfy the CMO’s meet and confer requirement: “The Court’s understanding of the phrase “meet and confer” is a conference in which opposing parties actually talk to one another.”

Archive - 2006