2009 – Page 34 – Electronic Discovery Law

Court Denies Motion to Compel Sequestration and Forensic Examination of City’s Computers and Storage Devices, Directs Parties to Cooperate to Develop a “Meaningful Discovery Plan”

Oct 28 2009

Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009)

In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants’ “computers and other electronic storage devices” for forensic examination. In support of the motion, plaintiff argued that defendants’ offer to produce emails in “paper form” was insufficient and that defendants were not properly preserving data for production. Noting plaintiff’s failure to make a sufficient showing in favor of such production and the parties’ failure to cooperate to reach agreement on the issues presented, the court denied plaintiff’s motion.

Upcoming Events – November

Oct 28 2009

National Business Institute: Keeping Up with E-Discovery – Live Seminar

November 18, 2009
Washington State Convention and Trade Center
800 Convention Place
Seattle, WA

K&L Gates partner Todd Nunn will present “The Amendments to the Federal Rules of Civil Procedure and Recent Case Law” addressing attorneys’ obligations under the rules and recent decisions that effect those obligations. Todd will also present “Electronic Discovery in the States and Recent Case Law” – an overview of state activity with regard to electronic discovery and a discussion of recent case law from state courts.

Click here to learn more and to register.

Thompson Reuters’ 13th Annual Electronic Discovery and Records Retention Conference

Oct 28 2009

November 5-6, 2009
Hotel Sax Chicago
333 N. Dearborn St.
Chicago IL 60654

K&L Gates partner David R. Cohen will participate in a panel discussion, “Retrospective Analysis of Critical Cases and How to Manage Your Risk” on November 5th at 10:15 AM. At this discussion, participants will hear about the most relevant cases in this industry and learn how to avoid common pitfalls. This panel will also explore how different Information Governance policies could have yielded different results.

Click here to learn more and to register.

Indiana Supreme Court Rules Trial Court Properly Admitted Evidence of Defendant’s MySpace Page in Murder Trial

Oct 23 2009

Clark v. State, 915 N.E.2d 126 (2009)

Defendant Ian J. Clark was found guilty of murdering a two year old girl left in his care and was sentenced to life in prison without parole. On appeal, Clark argued that the trial court improperly admitted evidence from his MySpace account in violation of Ind. R. Evid. 404(b). Taking up the “novel question” of the propriety of admitting such evidence, the Supreme Court of Indiana ruled that the trial court did not err in admitting the evidence, particularly where Clark’s own testimony made his character a “central issue” of his defense. The verdict and sentence were therefore affirmed.

Records Management, Privacy and e-Discovery Workshop: Achieving sensible solutions for records management, risk reduction and litigation readiness

Oct 21 2009

Featuring K&L Gates Partners, David R. Cohen and Dominic Bray, along with the Director of EMEA IM Marketing for HP Software, Erik Moller, this workshop addresses a myriad of issues including the risks and complexity of e-discovery and how to minimize those risks while maximizing cost savings and auxiliary benefits, European Privacy and Data Protection issues, and recommendations for best practices and solutions planning for data management, privacy and disclosure.

To view this presentation, click here.

Pa. Court Weighs In on E-Discovery

Oct 19 2009

By Peter Hall
Pennsylvania Law Weekly
October 19, 2009

An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case.

In Brooks v. Frattaroli, PICS Case No. 09-1709 (C.P. Lebanon Oct. 5, 2009), Lebanon County Common Pleas Judge Bradford H. Charles granted the defendants’ motion for a protective order, ruling that the plaintiff’s discovery request to enter the defendant’s property to inspect and copy computer files was overly broad.

Noting a relative dearth of precedent governing discovery of electronically stored information in Pennsylvania, Charles drew on the decisions of federal courts and recent changes to Federal Rule of Civil Procedure 34 to arrive at a balancing test that weighs the defendant’s right to privacy against the plaintiff’s desire to determine the truth.

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

Finding Emails “Not Reasonably Accessible” Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms

Oct 16 2009

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties’ respective requests for production. The court initially “urged the parties” to work cooperatively to develop agreed search terms to be utilized by MP3tunes in its search for responsive electronically stored information (“ESI”). After an initial failure to agree (and MP3tunes unilateral decision to search for ESI using only one search term), the court again directed counsel to cooperate to agree on search terms for MP3tunes use. Again, the parties failed to reach agreement and sought intervention by the court on a number of issues.

Court Denies Request for Adverse Inference Absent Demonstration that Lost Emails were Favorable to Plaintiff

Oct 08 2009

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Despite finding that “Defendants have unquestionably breached a duty to preserve emails in this case,” the court denied plaintiff’s motion for an adverse inference instruction where “Plaintiff ultimately failed to demonstrate that any destroyed emails would have been favorable to her position.”

No Reasonable Expectation of Privacy for Emails Transmitted through Employer’s Server and thus, No Privilege

Oct 02 2009

Leor Exploration & Prod., LLC v. Aguiar, 2009 WL 3097207 (S.D. Fla. Sept. 23, 2009)

In this case, the court overruled the determination of the special master and held that defendant had no reasonable expectation of privacy as to emails transmitted through plaintiff’s server and thus, no attorney-client privilege as to those communications.

Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009

Sep 30 2009

Beginning October 1st, Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule26(f)(2). Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.

Archive - 2009