2009 – Page 42 – Electronic Discovery Law

Bill proposes ISPs, Wi-Fi keep logs for police

Feb 20 2009

CNET News, Feb. 19, 2009
By Declan McCullagh, Chief Political Correspondent

Republican politicians on Thursday called for a sweeping new federal law that would require all Internet providers and operators of millions of Wi-Fi access points, even hotels, local coffee shops, and home users, to keep records about users for two years to aid police investigations.

The legislation, which echoes a measure proposed by one of their Democratic colleagues three years ago, would impose unprecedented data retention requirements on a broad swath of Internet access providers and is certain to draw fire from businesses and privacy advocates.

Same Facts, Different Results: California Court Declines to Reconsider Ruling in Favor of Rambus, Despite Delaware Court’s Opposite Conclusion

Feb 17 2009

Hynix Semiconductor Inc. v. Rambus Inc., 2009 WL 292205 (N.D. Cal. Feb. 3, 2009)

Beginning in 2000, Rambus Inc. (“Rambus”) alleged that several companies had infringed its patents and instituted legal action. Among the companies accused by Rambus were Micron Technology, Inc (“Micron”) and Hynix Semiconductors, Inc. (“Hynix”). In response to the allegations of infringement, both Micron and Hynix filed actions for declaratory judgment in Delaware and California, respectively. Both Micron and Hynix also asserted the unenforceability of the patents and alleged that Rambus had unclean hands as a result of extensive document destruction. In both cases, a bench trial was held on the unclean hands defense.

In January 2006, the California court ruled in Rambus’s favor holding that Hynix’s defense of unclean hands had failed. Hynix Semiconductor, Inc. v. Rambus Inc., 2006 WL 565893 (N.D. Cal. Jan. 5, 2006). In January 2009, the Delaware court ruled in Micron’s favor holding that Rambus had destroyed documents in bad faith and, as a sanction, ordered the patents unenforceable against Micron. Micron Tech., Inc. v. Rambus, Inc., 2009 WL 54887 (D. Del. Jan. 9, 2009).

Based on the ruling of the Delaware court, Hynix moved for summary judgment on the basis of defensive non-mutual issue preclusion or, in the alternative, for reconsideration of the California court’s prior decision regarding Rambus’s actions. Those motions were denied, leaving in place the conflicting rulings of the two courts.

K&L Gates Partners to Speak at Upcoming E-Discovery Events

Feb 17 2009

The American College of Trust and Estate Counsel – 2009 Annual Meeting

March 5-6, 2009
The Westin Mission Hills
Rancho Mirage, CA

K&L Gates Partner Martha Dawson will present “Where There’s a Will, There’s Metadata: Are your Clients’ (And Your Own) Secrets Really Safe?” on March 5th at 9:00 AM and again on March 6th at 8:00 AM.

Recognizing Broader Restrictions on Third-Party Discovery, Court Denies Plaintiff’s Fifth Motion to Compel Mirror Image of Computers

Feb 13 2009

Mintel Int’l Group, Ltd. v. Neerghen, 2009 WL 249227 (N.D. Ill. Feb. 3, 2009)

In this case, the plaintiff, Mintel International Group Limited (“Mintel”), alleged that defendant Neerghen violated the Illinois Trade Secrets Act, the Computer Fraud Abuse Act, and various terms of his employment contract when he emailed confidential Mintel documents to his personal account and subsequently accepted employment with Mintel’s competitor, Datamonitor. Throughout the course of litigation, five motions to compel were filed seeking a mirror image of third-party Datamonitor’s computers. All of those motions were denied.

A Promise Made is a Promise Kept: Court Holds Party to Its Promise and Orders Re-Production in Native Format but Orders Requesting Party to Bear the Cost

Feb 11 2009

In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D. Ky. Feb. 2, 2009)

In this case, despite prior production in accordance with the Federal Rules, the court enforced a promise to produce in native format but ordered the requesting party to bear the costs.

This matter came before the court on the motion of GeoStar Corporation for relief from the court’s order requiring it to produce financial information in its native format. Plaintiffs originally requested financial information from GeoStar “as they are kept in the usual course of business” or organized and labeled in a manner prescribed. GeoStar objected, but the court ultimately entered orders requiring production. The orders did not specify the format of production.

Despite Alleged Inadvertence of Production, Court Finds Privilege Waived Absent Evidence of Reasonable Precautions

Feb 09 2009

SEC v. Badian, 2009 WL 222783 (S.D.N.Y Jan. 26, 2009)

In this case, Rhino Investors, Inc. (“Rhino”), a non-party, sought to claw back approximately 260 documents that it claimed were inadvertently produced in 2003 in the midst of an SEC investigation. The court, applying the four factors set forth in Louis Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and its progeny, concluded that Rhino had waived any privilege it may have asserted.

Rejecting Arguments Regarding “Transitory Nature” of Data and Server Limitations, Court Finds Defendants Failed to Preserve Evidence in Bad Faith, Orders Adverse Inference and other Sanctions

Feb 05 2009

Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009)

Upon finding that defendants acted in bad faith to deliberately destroy relevant evidence despite a duty to preserve, the court imposed severe sanctions.

Defendant Usenet.com, operated by defendant Gerald Reynolds, is a commercial Usenet provider. Usenet is a “network of loosely connected computer servers that share message traffic for discussions.” Users are able to upload content to the system and download content from other users’ postings. Postings to Usenet are known as “articles.” “Articles” are organized into “newsgroups” – including Music Groups. In this case, “Plaintiffs contend that Defendants provided their subscribers access to hundreds of music piracy newsgroups containing vast amounts of infringing digital music files copyrighted by Plaintiffs.”

Despite Protection of Marital Privilege from Email’s Admission “in Judicial or Grand Jury Proceedings,” Court Finds Email may be Admitted for Other Purposes and Denies Motion to Suppress

Feb 03 2009

U.S. v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008)

In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas testify. Rejecting Nicholas’s argument that the email was protected from disclosure by marital privilege, the district court held that a Ninth Circuit ruling that the email was subject to some protection by the marital privilege did not preclude all potential use of the email. Accordingly the district court held that because the email could constitute the admission of a co-conspirator and be admissible at trial under other limited circumstances, it must be disclosed to Nicholas’s co-defendant.

“Like any Ordinary Litigant, the Government Must Abide by the Federal Rules of Civil Procedure”

Jan 28 2009

S.E.C. v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009)

In this case, arising from claims of securities fraud, the court addressed questions concerning the government’s discovery obligations in civil discovery. Throughout discovery in the case, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information. Following extensive analysis of the individual issues, the court ultimately concluded that “[w]hen a government agency initiates litigation, it must be prepared to follow the same discovery rules that govern private parties…”

Finding Metadata is Not a Public Record Pursuant to Arizona Public Records Law, Court Declines to Compel Production

Jan 26 2009

Lake v. City of Phoenix, 207 P.3d 725 (Ariz. Ct. App. 2009)

In this case, the Arizona Court of Appeals upheld a superior court ruling denying plaintiff’s motion to compel production of metadata associated with documents previously produced pursuant to Arizona’s Public Records Law.

In late 2006, after filing an Equal Employment Opportunity Complaint against the city, plaintiff submitted a series of public records requests. The city’s subsequent production contained hard copy versions of electronic documents responsive to his request for all notes “documenting supervisory performance” within the relevant time frame. Plaintiff suspected the notes had been backdated and requested production of the metadata associated with each document. The city refused arguing that the requested metadata was “not maintained by the city and was not available,” and that metadata was not a public record. In response, plaintiff brought a special action before the district court. Finding it lacked jurisdiction to hear the matter, the superior court denied plaintiff’s motion to compel. Plaintiff appealed, and the appellate court affirmed the superior court’s ruling denying the production of metadata.

Archive - 2009