March 2007 – Page 2 – Electronic Discovery Law

Intel Faces Up to E-Mail Retention Problems in AMD Lawsuit

Mar 13 2007

From the March 7 archives of eWeek.com:

"Updated: News Analysis: A judge gives the company 30 days to find missing e-mails; meanwhile, Intel’s foibles reveal a prime example of what businesses of all sizes now face since the institution of new federal e-discovery court rules.

Intel is facing some big-time legal problems in its 2-year-old legal tussle with a major competitor, AMD—largely because its own internal e-mail archiving system apparently isn’t doing the job.

A U.S. federal judge on March 7 gave the world’s largest microprocessor maker 30 days to try to recover about 1,000 lost e-mails that it was required to keep for an antitrust lawsuit filed by its biggest competitor, AMD, in 2005.

Judge Joseph Farnan of the U.S. District Court in Delaware referred the lost e-mail matter to the so-called special master—a court official who follows up such orders for the judge. The judge also ordered Intel to file a detailed report on how it will try to recover the e-mail evidence."

To learn more about the "document retention lapses" that occurred at Intel, read Intel’s counsel’s letter to the court dated March 5, 2007, here.

Nunn Authors Document Preservation Chapter for DRI Treatise

Mar 09 2007

K&L Gates partner Todd Nunn, together with DATG & Records Management practice attorneys Ted Webber, Mike Goodfried and Trudy Tessaro, co-authored a chapter on the preservation of electronically stored information in DRI’s recently published treatise, Understanding the New E-Discovery Rules. This chapter examines the duty to preserve documents and other information, particularly electronically stored information, that is potentially relevant to litigation. It also examines the effect of the recent Amendments to the Federal Rules of Civil Procedure on the preservation of information, and gives practical instruction on methods of meeting the preservation obligation for electronic information. The treatise was published in December 2006 by DRI as part of the DRI Defense Library Series.

A .pdf copy of the chapter is available here.

Court Sets Out Imaging, Recovery and Disclosure Protocols for Imaging of Defendants’ Computer Equipment by Plaintiff’s Computer Forensics Expert

Mar 09 2007

Cenveo Corp. v. Slater, 2007 WL 442387 (E.D. Pa. Jan. 31, 2007)

In this case, plaintiff alleged that its former employees improperly used plaintiff’s computers, confidential information and trade secrets to divert business from plaintiff to defendants. In discovery, the parties disputed how and under what circumstances materials on hard drives in defendants’ possession would be produced to plaintiff. Plaintiff sought to use a mirror or digital imaging method, in which a digital image of the hard drives would be created and turned over to a third party forensic computer expert of plaintiff’s choosing, who would then search the image for relevant information. Plaintiff further proposed that, to avoid any disclosure of privileged information, defendants should provide a privilege log to plaintiff’s third party forensic expert, and that the forensics expert would be bound not to disclose any privileged information provided to him. Defendants, on the other hand, proposed that they create digital image of the hard drives in question and search that image using terms that plaintiff provided and defendants agreed upon. Defendants would then produce the results of the search to plaintiff, save any confidential or privileged information. Read More

Conclusory Statements About Costs Are Insufficient to Shield Information from Discovery Under FRCP 26(b)(2)(B)

Mar 01 2007

Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D. Minn. Feb. 1, 2007)

In this order, District Court Judge David S. Doty concluded that a discovery order issued by Magistrate Judge Jeanne J. Graham was neither clearly erroneous nor contrary to law. The January 4, 2007 discovery order required, among other things, that defendants produce responsive documents by February 2, 2007. Defendants had argued that, while certain documents that were responsive existed, the cost to retrieve them from an electronic archive may be prohibitive. The magistrate judge determined that defendants had not met their burden to establish that the information sought was “not reasonably accessible because of undue burden or cost” under Fed. R. Civ. P. 26(b)(2)(B):

Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.

(January 4, 2007 Order, at p. 12.)

Archive - March 2007