2009 – Page 33 – Electronic Discovery Law

Upcoming Events – December

Nov 18 2009

Pennsylvania Bar Institute – E-Discovery

December 3, 2009
PBI Professional Development Conference Center
Heinz 57 Center
339 Sixth Ave., 7th Floor
Pittsburgh, PA

K&L Gates partner David Cohen will present “The Year in Review,” a closer look at some of the most important and interesting opinions of 2009. Cases to be discussed cover a myriad of topics including preservation of ESI, the discoverability of metadata, format of production, and much much more.

To learn more and to register, click here.

Federal Judicial Center Releases Preliminary Results of “Case-Based Civil Rules Survey”

Nov 16 2009

The Federal Judicial Center has released the preliminary results of its Case-Based Civil Rules Survey. The survey, as described in the Executive Summary “presents preliminary findings form a survey of attorneys in recently closed civil cases…The report covers discovery activities and case management in the closed cases; electronic discovery activity in the closed cases; attorney evaluations of discovery in the closed cases; the costs of litigation and discovery; and attorney attitudes towards specific reform proposals, and, more generally, the Federal Rules of Civil Procedure.”

Included in the section addressing electronic discovery were results indicating that issues related to the discovery of electronically stored information (“ESI”) were discussed in more than 30 percent of planning conferences, that the most common issues discussed were the “parties’ routine practices regarding retention of ESI and the format of production,” and that “approximately 50 percent of parties eventually producing ESI instituted a litigation ‘freeze.’”

A copy of the full report is available here.

Court Compels Discovery from Foreign Corporation Pursuant to Federal Rules of Civil Procedure

Nov 12 2009

In re Global Power Equip. Group, Inc., 418 B.R. 833 (Bankr. D. Del. 2009)

Upon a motion to compel production of documents from claimant, a foreign corporation, the court found the documents at issue to be within the control of the claimant and, applying the “comity analysis” as articulated by the United States Supreme Court, determined that the contested matter “should and shall be conducted under the Federal Rules and not under the Hague Evidence Convention.” Accordingly, the motion to compel was granted and claimant was ordered to comply with the contested discovery requests “in accordance with the Federal Rules.”

Upcoming Event – IQPC’s 8th Annual Electronic Discovery Event

Nov 11 2009

December 7-9, 2009
Altman Building
New York, NY

This electronic discovery conference gathers industry leaders together to explore the current risks, opportunities and current challenges facing e-Discovery. Taking a strategic look at how best to manage Electronic Stored Information in a proactive, cost-effective and efficient manner, the goal of the event is to provide the necessary tools to make e-Discovery a normal business function rather than a "catastrophic" event.

K&L Gates partner, David Cohen, will be co-presenting a pre-conference workshop, “e-Discovery Mythbusters: Proven Strategies to Increase Value and Lower Costs Early in the Litigation Cycle.” Attendees to this presentation will learn valuable lessons on how to prepare for litigation while avoiding common pitfalls and minimizing risk and will also learn about recent developments and trends in the industry.

For more information and to register, click here. Save 20% off standard pricing by using the referral code: IUS_SPKRPASS_#1!

Defendants and General Counsel Sanctioned for Failure to Preserve Evidence

Nov 11 2009

Swofford v. Eslinger, 671 F. Supp. 2d 1274 (M.D. Fla. 2009)

In April 2006, plaintiff Swofford was shot seven times, on his own property, by two deputies in pursuit of two burglary suspects. Plaintiffs brought suit against the sheriff in his official capacity and against the deputies individually. In August 2006, plaintiffs’ counsel sent the first of two letters requesting the preservation of relevant evidence. In February 2007, plaintiffs’ counsel sent a second preservation letter and a notice of claim as required by Florida statute. Defendants did not deny receipt of these letters, but evidence was nonetheless destroyed.

Despite defendants’ receipt of the letters, no litigation holds were ever issued. Rather, the letters were forwarded to six senior employees of the Seminole Country Sherriff’s Office (“SCSO”), including named defendant Sherriff Eslinger. No preservation instructions were provided to the deputies involved in the shooting.

Attorney-Client Privilege in Work E-Mails

Nov 10 2009

By Anthony E. Davis
New York Law Journal
November 5, 2009

There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers — reaching apparently inconsistent conclusions. This article compares and seeks to reconcile the cases, and to assist lawyers in advising clients on how to avoid the risks that such communications pose. The first of these cases, Scott v. Beth Israel Medical Center Inc., 2007 WL 3053351 (N.Y. Sup. Oct. 17, 2007), was previously featured in an article in this column ("Abusive Litigation Tactics and Loss of Privilege," March 3, 2008), but is revisited here because a New Jersey court recently reached a diametrically opposite conclusion on quite similar facts, in Stengart v. Loving Care Agency Inc., 973 A.2d 390 (N.J. Super. A.D. July 29, 2009). The article also reviews other recent decisions in the same general subject area.

To read the full article on Law.com, click here.

“Roadmap for Reform” Reports Provide Rules and Guidelines for Pilot Programs Aimed at Addressing Problems of Civil Justice System

Nov 04 2009

In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System (“Final Report”) earlier this year. The Final Report, issued in March of this year, identified a myriad of problems within the nation’s civil justice system, including the ever growing expense of litigation, particularly with regard to discovery, and unnecessary delays in reaching resolution.

Supreme Court of Arizona holds Metadata is Subject to Public Records Requests

Oct 30 2009

Lake v. City of Phoenix, 222 Ariz. 547, 218 P.3d 1004 (2009)

In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that “if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.” [Emphasis added.]

Sedona Continues Call for Cooperation

Oct 30 2009

By Jennifer H. Rearden and Farrah Pepper
New York Law Journal
October 29, 2009

It turns out that Jean-Paul Sartre’s famous pronouncement that "hell is other people" was overly broad. Other people per se are not the problem, but rather other lawyers — and uncooperative ones at that. A federal judge in the late 1980s confirmed as much, as a recent e-discovery opinion reminds us: "If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes."[FOOTNOTE 1]

To read the full article, posted at Law.com, click here.

Court Imposes Strict Sanctions for Loss of Video Resulting from City’s Reckless Failure to Ensure Preservation

Oct 29 2009

Peschel v. City of Missoula, 664 F. Supp. 2d 1137 (D. Mont. 2009)

In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars. Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].”

Archive - 2009