May 2010 – Electronic Discovery Law

Failure to Test Keywords by Sampling a Prominent Consideration in Court’s Finding of Waiver

May 24 2010

Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D. W. Va. May 18, 2010)

Where plaintiff (Felman Production, Inc.) failed to take sufficiently reasonable precautions to prevent the disclosure of a privileged email, privilege was waived.

In this case, the court addressed a number of issues, including the parties’ compliance with their clawback agreement and the applicability of the crime-fraud exception to 377 inadvertently produced, privileged emails. The primary focus of this summary, however, is the court’s analysis of whether the privilege was waived as to one specific email, “the May 14th email”, and in particular, its analysis of the reasonableness of plaintiff’s precautions to prevent such disclosure.

Court Order Provides Students, Parents Opportunity to View Images Captured by School-Issued Laptops

May 20 2010

For anyone who hasn’t heard, a school district in Pennsylvania has recently come under fire for using the webcams on school-issued laptops to capture images of students both during and outside of school hours – about 56,000 of them, according to reports. According to the complaint filed in this case, students and parents were not informed of the school’s ability to use the webcams. In at least one instance, a student was called to the assistant principal’s office to discuss an image captured by the webcam on his laptop. His family has now sued the district and hopes that other students will join them. According to the school district, the webcams were intended for tracking lost or stolen computers.

Upcoming Events

May 19 2010

Washington State Bar Association: Washington Civil Procedure: Let’s Do it Right! – How to Navigate Washington’s Civil Rules for Your Client’s Benefit

May 26, 2010
8:25 AM – 4:45 PM
Red Lion Hotel, Emerald Ballroom II
1415 Fifth Avenue
Seattle, WA

K&L Gates Partner Todd Nunn will present a discussion entitled, “Electronic Discovery: What You Must Know to Correctly Steer Your Client”. Attendees can expect to learn more about e-Discovery best practices and privilege issues for e-discovery (and discovery in general) as well as what is happening with the state rules of civil procedure and the possibility they will be amended to incorporate electronic discovery.

For more information or to register, click here.

Court Orders Monetary Fine for Gross Negligence and Intentional Spoliation of ESI, Including Emails, Text-Messages, and Skype Messages

May 11 2010

Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378 (S.D.N.Y. 2010)

Upon finding that defendants spoliated relevant information, including emails, Skype messages, and computer logs, the court declined to order an adverse inference, to preclude defendants from the presentation of arguments implicating the discarded documents, or to order defendants to pay plaintiff’s costs, but ordered monetary sanctions in the amount of $10,000, after balancing “2FA’s litigation conduct with its status as a small corporation.”

North Carolina Bar Association Issues Proposed Ethical Opinions Approving Use of SaaS, Providing List of Considerations to Minimize Risk

May 10 2010

In what may be the first opinion of its kind, the North Carolina Bar Association has drafted a proposed ethical opinion addressing lawyers’ use of “software as a service” ("SaaS"). The proposed opinion concludes that lawyers “may contract with a vendor of software as a service provided the risks that confidential client information may be disclosed or lost are effectively minimized.”

Court Rules Failure to Copy Files on Flash Drive Prior to Failure of the Drive Violated Duty to Preserve

May 07 2010

Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010)

In this case, the court ordered sanctions for defendants’ failure to preserve relevant data where defendants failed to back up a flash drive containing all relevant financial records and where that data was lost as the result of the flash drive’s failure.

Delaware County Establishes New Complex Commercial Litigation Division, Requires Early Consideration of Electronic Discovery

May 07 2010

Effective May 1, 2010, New Castle County, Delaware, has created a new division known as the Complex Commercial Litigation Division. Available for prescribed categories of cases, including cases with an amount in controversy of more than $1 million (excluding certain types of actions, including, e.g., claims for personal, mental or physical injury), the new division adheres to principles that shall govern the administration of each case. These principles include assigning the case to the same Panel Judge for all purposes through final disposition and compliance with Panel-established “uniform procedures” such as mandatory disclosures similar to those under the federal rules and the consideration of electronic discovery early in the case, among others.

Archive - May 2010