October 2008 – Electronic Discovery Law

Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants’ Hard Drives

Oct 30 2008

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery. Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants. Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

K&L Gates Lawyers Make Major Contributions to E-Discovery Publication

Oct 29 2008

Available now from PBI Press, e-Discovery provides guidance for practitioners of all levels of experience through the often complicated world of e-discovery.

Once again showcasing the depth of knowledge at the firm, four of the fifteen contributing authors to the publication are members of the K&L Gates e-Discovery Analysis and Technology Group. Those members are Tom Smith, David Cohen, Daniel Miller, and Lynn Reilly.

To learn more about this valuable resource or to purchase a copy of your own, click here.

Newly Released Securities and Exchange Commission Enforcement Manual (“Red Book”) Provides Guidance on Treatment of Electronic Information

Oct 28 2008

For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public. Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation.

Several sections address the topic of electronic information. For example, section 3.2.6.2, “Form of Production,” provides a detailed explanation of what is expected of those responding to an SEC subpoena, including a discussion of the SEC’s preference for electronic production. Section 3.2.6.2.3, “Format for Electronic Production of Documents to the SEC,” provides even greater detail regarding the production of electronic information. The manual also provides valuable guidance on privilege logs, bates stamping, records certifications and much more.

The full text of the Enforcement Manual is available here.

Court Declines to Require Plaintiff to Designate Specifically Confidential Portions of Documents during Discovery where Entire Document does not Rise to that Level

Oct 28 2008

Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008)

In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things. The parties attempted to negotiate the terms of such an order, but could not agree on several issues, including whether only portions of documents should be designated as “confidential” if the entire document did not rise to that level. Under the parties’ proposed terms, materials designated “confidential” would have automatically been sealed if filed with the court.

Western District of North Carolina Amends Local Rules, Specifies Electronic Production as Topic of Pretrial Conference

Oct 24 2008

Effective January 1, 2008, amended Local Rule 16.1 specifies appropriate topics for consideration at the Initial Pretrial Conference, including the production of electronically stored information (“ESI”).

Click on the following link to see amended rule:

Local Civil Rule 16.1 Pretrial Conferences (see subpart (G) Initial Pretrial Conference)

For a complete listing of local federal rules and guidelines addressing electronic discovery, see our updated post here.

Court Highlights Cooperation Requirements of Discovery under Rule 26, Rules Objections Waived for Failure to Be Specific, and Orders Meet and Confer to Resolve Remaining Disputes

Oct 23 2008

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

In this employment case, plaintiffs filed several motions to compel supplemental responses to their extensive discovery requests after defendants allegedly failed to adequately respond. The case was eventually referred to Chief United States Magistrate Judge Paul Grimm for the purpose of resolving all of the discovery disputes.

In the initial review of defendants’ objections to the requests, the court noted “an obvious violation” of Federal Rule 33(b)(4) and “facially apparent violations” of Federal Rule 33(b)(2) which require that objections to interrogatories and requests for production be laid out with specificity or else they are waived. Moreover, the court suggested that the defendants’ failure to be particular in their objections “suggested a probable violation” of Federal Rule 26(g)(1) which requires a reasonable inquiry prior to objecting to an interrogatory or document request. Accordingly, the court scheduled a hearing to address the issues.

To “Expedite the Flow of Discovery and Facilitate Prompt Resolution of Disputes”, Court Adopts Proposed Order Governing Electronic Discovery

Oct 23 2008

Star, Inc. v. QFA Royalties LLC, No. 07-cv-02223-WYD-CBS (D. Colo. Filed Oct. 10, 2007)

In this case, the court granted an unopposed motion of the defendant to enter an order governing electronic discovery. The proposed order adopted by the court was intended to “expedite the flow of discovery material and facilitate prompt resolution of disputes over production of electronic materials…” Included in the order was a provision requiring each party to identify an “e-discovery liaison” through whom all discovery requests and responses would be made as well as provisions providing instruction regarding search methodology, timing of discovery, format of production, privilege review, document retention and costs.

A copy of the motion and proposed order is available here.

A copy of the court’s order is available here.

Defendants Admit Destruction or Loss but Claim Good Faith, Court Denies Motion for Preservation Order and Spoliation Inquiry

Oct 21 2008

Almarri v. Gates, 2008 WL 4449858 (D.S.C. Oct. 2, 2008)

In this case challenging conditions of his confinement, plaintiff sought an order directing the government to preserve evidence and an inquiry into the government’s destruction and other spoliation of evidence. Specifically, the plaintiff alleged that the government had destroyed relevant materials related to his detention, including recordings, and that the government had no uniform policy for preserving detainee interrogation recordings. Therefore, a preservation order was necessary to prevent further spoliation. The government maintained that such an order was unwarranted in light of the multiple preservation directives issued to ensure that evidence related to the plaintiff was preserved.

Finding “No Reason to Treat Websites Differently than Other Electronic Files,” Court Grants Adverse Inference for Failure to Preserve Website

Oct 21 2008

Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., Inc., 2008 WL 4513696 (D.N.J. Oct. 1, 2008) (Not for Publication)

In this case arising from failed negotiations for a long term development loan, the plaintiff filed a motion for spoliation sanctions and sought an adverse inference in its favor. Specifically, plaintiff alleged spoliation of the contents of the defendants’ website as it existed at the time the dispute between the parties arose, and of a particular letter from the Bank of New York.

Court Denies Protective Order, Orders Allegedly Proprietary Data Produced Directly to Competitor

Oct 20 2008

In re NVMS, LLC, 2008 WL 4488963 (Bankr. M.D. Tenn. Mar. 21, 2008)

In this case, the debtor, a medical services company, moved for expedited discovery of information contained in the database of a former billing partner. In July of 2000, the debtor contracted with MBP to handle the debtor’s billing. In February 2008, the debtor stopped doing business with MBP and started using Practice Resources Network, Inc. (PRN). After switching, the debtor requested that MBP provide the debtor with a copy of its billing data so the debtor could determine the status of its claims. MBP refused. Soon after filing for bankruptcy in March 2008, the debtor filed an expedited motion seeking copies of this data from MBP. MBP objected and filed a motion for a protective order.

Archive - October 2008