November 2008 – Electronic Discovery Law

Applying Evidence Rule 502 and Five Factor Test, Court Determines No Waiver

Nov 26 2008

Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008)

In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents. Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents.

In February 2007, Rhoads began preparing for its anticipated litigation against Building Materials Corporation of America. Realizing the likelihood of extensive electronic discovery, Rhoads directed its IT consultant to research software to assist with the electronic discovery effort. The IT consultant eventually purchased Discovery Attender (or “Sherpa”) to perform the necessary electronic data searches. Shortly thereafter, the IT consultant and his team began work to identify locations of potentially relevant information.

Court Reverses Order Denying Sanctions and Remands Case for Reconsideration Where Plaintiff Hired Expert to “Fix” Computer but Failed to Inform Expert of Ongoing Duty to Preserve and Evidence was Destroyed

Nov 26 2008

Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008)

In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive. Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production. No agreement was reached. Rock Oil filed a motion to compel and the court granted the motion. Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.

K&L Gates Lawyers to Give Several Presentations in December

Nov 25 2008

Pennsylvania Bar Institute: e-Discovery

December 2, 2008
9:00 AM – 4:30 PM EST
Several Locations, Webcast

K&L Gates partner David Cohen will speak at two sessions during this event. The first presentation, “ABCs of EDD” will begin at 9:05 a.m. The second presentation, “E-Discovery Ethics” will begin at 3:30 p.m.

Nebraska Recodifies Civil Rules

Nov 24 2008

According to a Revisor’s note:

The former Nebraska Discovery Rules for All Civil Cases have been renumbered in the revised Nebraska Court Rules as Chapter 6, Article 3, Nebraska Court Rules of Discovery in Civil Cases. Thus, former rule 26 is now Neb. Ct. R. Disc. § 6-326, etc., with the last two numbers of the newly renumbered sections corresponding to the former rule.

This affects recent amendments to former rules 33, 34, and 34A, addressing e-discovery issues. Those rules are now known as follows:

§ 6-333     Interrogatories to Parties
§ 6-334     Production of documents, electronically stored information, and things and
                   entry upon land for inspection and other purposes
§ 6-334A Discovery from a nonparty without a deposition

Effective July 18, 2008

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

Arizona Amends Rules of Family Law Procedure to Address Electronic Discovery

Nov 20 2008

Arizona’s Supreme Court has approved amendments to Arizona’s Rules of Family Law Procedure that will address several major e-discovery issues. The amended rules are based on Arizona’s Rules of Civil Procedure and will become effective January 1, 2009. The amendments include changes to the following rules:

Ariz. R. Family Law P. 49      Disclosure
Ariz. R. Family Law P. 51      Discovery
Ariz. R. Family Law P. 52      Subpoena
Ariz. R. Family Law P. 62      Production of Documents and Things and Entry
                                                  Upon Land for Inspection and Other Purposes
Ariz. R. Family Law P. 65      Failure to Make Disclosure or Discovery; Sanctions

To read the order and see the amendments, click here.

For a current list of all states that have enacted special e-discovery rules, see our updated post here.

In Ongoing Sanctions Dispute, Protective Order Limits Access to and Uses For Production, and Clarifies No Waiver by Production Pursuant to Self-Defense Exception

Nov 19 2008

Qualcomm Inc. v. Broadcom Corp., 2008 WL 4858685 (S.D. Cal. Nov. 7, 2008)

At trial in this case, Broadcom made an oral motion for sanctions related to Qualcomm’s failure to disclose documents corroborating its participation in the Joint Video Team (“JVT”), a standards body related to video coding specifications. Qualcomm’s claimed lack of participation in the JVT was a core element of its claims for patent infringement against Broadcom. Judge Brewster referred the discovery aspects of that motion to Magistrate Judge Major and then issued an Order on Remedy for Finding of Waiver based on his determination that Qualcomm’s attorneys had participated in a sequence of discovery misconduct throughout the litigation process. However, because those attorneys had not had an opportunity to be heard before the order was issued impugning their behavior and in order to afford them an opportunity to be heard on the potential imposition of attorney sanctions, the court issued an Order to Show Cause Why Sanctions Should not be Imposed.

New Additions to List of District Court Rules

Nov 11 2008

At least 41 United States District Courts now require compliance with special local rules, forms or guidelines addressing the discovery of electronically stored information. In some districts where there are no local rules or court-mandated forms, individual judges have created their own forms or set out their own preferred protocols for e-discovery.

The following Districts have just been added to our collection of United States District Court local rules, standards, guidelines and judge-mandated forms and protocols:

Northern District of Illinois
Judge Virginia Kendall’s Case Management Procedures, Discovery
Magistrate Judge P. Michael Mahoney’s Suggested Case Management Order

Miscommunication about Search Terms Leads to Defendants’ Refusal to Produce Thousands of Documents, Court Declines to Compel Production without Showing of Some Benefit to Plaintiff

Nov 10 2008

Ross v. Abercrombie & Fitch Co., 2008 WL 4758678 (S.D. Ohio Oct. 27, 2008)

In this securities case, the parties reached agreement that discovery was best accomplished by allowing Abercrombie to perform keyword searches to identify relevant information for production. Plaintiff identified and provided the key words to the defendant.

The first key words list contained 120 terms. After efforts to ensure the search would be productive, including converting certain files to a different format, Abercrombie ran the search. There were many hits. To reduce the volume, plaintiffs crafted a revised list of 123 terms. Another search was run and when the results came in, the parties agreed that some data sets from among the results would be reviewed and produced. Abercrombie produced those documents. The parties also agreed that further refinements of the search would be necessary to cut down the remaining results. Accordingly, plaintiff’s counsel sent 6 additional terms to Abercrombie to be run in proximity to other specified terms.

Court Holds No Expectation of Privacy on Work Computer, Even for “Personal” Information

Nov 10 2008

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008)

In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search. Defendant argued that he, not his employer, owned the computers and that he therefore had a reasonable expectation of privacy as to the personal information stored on them. Finding that the employer, in fact, owned the computers and therefore had every right to consent to the search, the court denied defendant’s motion to suppress.

A Busy November: K&L Gates Partners to Speak at Several E-Discovery Events

Nov 07 2008

Allegheny County Bar Association CLE – T-BOLT: The Best of Legal Technology

November 10-11, 2008
David L. Lawrence Convention Center
1000 Fort Duquesne Blvd.
Pittsburgh, PA 15222

K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith.

David Cohen will be one of the speakers presenting “Using Automation for Litigation Support” on Tuesday, November 10th at 1:30 p.m. This session will address issues including docket management and scheduling, document management, and case organization and discuss how technology is helping litigators save time and achieve better results.

Thomas Smith will be one of the speakers presenting “Advanced Issues in e-Discovery” on Tuesday, November 11th at 11:00 a.m. This session will provide some “advanced tips” for how to better handle e-discovery and how to optimize outcomes, control costs, and avoid sanctions.

Click here for more information or to register.

Archive - November 2008