September 2008 – Page 2 – Electronic Discovery Law

Defendant’s “Brazen Destruction of Evidence” Warrants Default Judgment

Sep 09 2008

Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008)

In this copyright infringement litigation, seven major recording companies alleged that defendant Howell had used the KaZaA file-sharing program to download their sound recordings and distribute them to other users of the network. Howell had previously resisted plaintiffs’ efforts to conduct a forensic examination of his computer hard drive, and the court had granted plaintiffs’ motion to compel and granted leave to take additional discovery. With the benefit of this additional discovery, plaintiffs moved for terminating sanctions based on Howell’s willful spoliation of material evidence.

Based on the evidence presented, the court found that:

• Defendant removed the KaZaA program from his computer and deleted the contents of the shared folder shortly after receiving notice of the lawsuit

K&L Gates Partner Martha J. Dawson to Deliver E-Discovery Presentation in Berlin

Sep 08 2008

K&L Gates Compliance Talks

E-Discovery Analysis and Technology (e-DAT) Group:

Tool for Due Diligence, Compliance and Investigations

Thursday, September 18, 2008, 5:30-6:30 pm
K&L Gates LLP
Markgrafenstraße 42, 10117 Berlin

Presentation by Martha J. Dawson, K&L Gates, Seattle
With an Introduction by Dr. Wilhlem Hartung, K&L Gates, Berlin

The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible

Sep 03 2008

July 2008. Available for free download here.

From the Preface:

This Sedona Conference® Commentary focuses on the decision making process relating to the preservation of sources of electronically stored information that may contain discoverable information that is “not reasonably accessible.” The “reasonable accessibility” distinction – introduced by the 2006 Federal E-Discovery Amendments as part of the “two-tiered” approach to discovery – plays a role in, but is not wholly determinative of, preservation obligations.

The central dilemma of preservation planning in the absence of the opportunity to discuss discovery requests or reach prior agreement among the parties is predicting exactly which sources of information may actually be discoverable in a given case. No bright-lines exist. The primary duty is to make reasonable assessments in good faith.

To assist litigants and the courts, we have developed the following Guidelines that summarize our recommendations for making those assessments. The Guidelines also discuss how parties may “identify” inaccessible sources that will not be preserved and emphasize the value of cooperative efforts to reach agreements on preservation topics in dispute that reflect the unique demands of each case.

Archive - September 2008