Archive - 2010

Phillip M. Adams & Assoc., LLC v. Winbond Elecs. Corp., 2010 WL 3767318 (D. Utah Sept. 16, 2010)

In this ongoing multi-defendant patent litigation, the court has previously addressed allegations of spoliation.  In March 2009, the court found sanctions were warranted for defendant ASUS Computer International’s violation of its duty to preserve which arose in the “1999-2000 environment” of litigation surrounding the technology to resolve a defect in a particular floppy disk controller (“FDC”).  In this case, the court reaffirmed its earlier holding regarding the trigger for defendants’ duty to preserve, namely that “[i]n late 1999 the entire computer and component manufacturer’s industry was put on notice of a potential for litigation regarding defective floppy disk components (“FDCs”) by the well publicized settlement in a large class action lawsuit against Toshiba.”  Accordingly, for defendant MSI’s failure to uphold its duty to preserve, the court found sanctions were warranted.

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McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010)

In this personal injury case, defendant Hummingbird Speedway, Inc. sought access to plaintiff’s social network accounts and requested production of his user names, log-in names, and passwords.  Plaintiff objected, arguing that the information was confidential.  Upon defendants’ Motion to Compel, the court found the requested information was not confidential or subject to the protection of any evidentiary privilege and ordered its production to defendants’ attorneys within 15 days and that plaintiff should not take steps to delete or alter the existing information on his social network accounts.

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O’Neill v. City of Shoreline, 2010 WL 3911347 (Wash. Oct. 7, 2010)

In this case of first impression, and only the second of its kind in the country, the Supreme Court of Washington held that metadata is subject to disclosure pursuant to Washington’s Public Records Act (“PRA”).

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Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information.  Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years.  Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost.  Defendants also objected to the temporal scope of discovery.  Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

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Charm v. Kohn, 2010 WL 3816716 (Mass. Super. Sept. 30, 2010)

In this case, as the result of using the “reply all” function, defendant inadvertently sent a privileged communication to opposing counsel.  Twenty-eight minutes later, defendant’s counsel sent an email to opposing counsel demanding the email be deleted.  Opposing counsel refused.  Addressing the issue of possible waiver, the court found that defendant and his counsel had taken reasonable steps to preserve confidentiality and granted defendant’s motion to strike the email, which had been attached as an exhibit to an opposition to summary judgment.

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DeGeer v. Gillis, 2010 WL 3732132 (N.D. Ill. Sept. 17, 2010)

In this case, the court addressed the question of waiver as to nine privileged emails.  As to six emails inadvertently produced by a third party, waiver was averted by the terms of a Stipulated Protective Order entered by the court which precluded waiver by inadvertent production.  As to three other emails, the question of waiver turned on plaintiff’s use of his work computer to send the messages.  Relying on evidence that plaintiff’s employer did not believe such use would waive privilege, the court ruled privilege was not waived.

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Romano v. Steelcase, Inc., 907 N.Y.S.2d 650 (N.Y. Sup. Ct. 2010)

Defendant sought to discover plaintiff’s “current and historical Facebook and MySpace pages and accounts”, including deleted information, on the belief that information posted there was inconsistent with her injury claims.  The court granted the motion, despite plaintiff’s privacy concerns, upon finding the information was material and relevant and that plaintiff had no reasonable expectation of privacy, and because the defendant’s need for access outweighed plaintiff’s privacy concerns.

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Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

In this case, both parties moved for spoliation sanctions alleging destruction of emails.  Defendants also sought to compel production of certain emails and plaintiff’s personal computer and storage devices to ensure she was not withholding evidence.  Both motions for sanctions were denied.  Despite denying the motion to compel production of plaintiff’s computer, the court ordered plaintiff to create a mirror image at defendants’ expense — to be left in safekeeping with her attorney — to ensure the preservation of evidence while defendants further investigated her preservation efforts.

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