2010 – Page 30 – Electronic Discovery Law

The Sedona Conference® Publishes 2010 Update to its Commentary on Legal Holds and the Third Edition of The Sedona Conference Glossary

Sep 16 2010

The Sedona Conference®, a charitable research and education institute “dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights” recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, “reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process.” The Commentary provides insightful discussion of the issues surrounding preservation obligations and legal holds, including eleven Guidelines “intended to facilitate compliance by providing a framework an organization can use to create its own preservation procedures.” It is also a great resource for practitioners and other members of the legal community who recognize the need to stay abreast of changes in this important area.

The Sedona Conference Glossary, now in its third edition, is intended to served as a “tool to assist in the understanding and discussion of electronic discovery and electronic management issues…” and provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.

Both publications are available for download here.

The Grimm Truth About Spoliation

Sep 13 2010

Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)

For willful, bad faith discovery violations, including failure to implement a litigation hold, attempted deletion of ESI, actual deletion of ESI, and misrepresentations regarding the completeness of discovery, the Court recommended default judgment and a permanent injunction as to plaintiff’s copyright claim and ordered monetary sanctions and that defendants’ acts of spoliation be treated as contempt such that an individual defendant, the President of Creative Pipe, be jailed for not more than two years “unless and until” he pays the attorney’s fees and costs awarded.

Son’s Receipt of Privileged Emails Did Not Result in Waiver where Son was a “Necessary Conduit in Delivering” Attorney’s Emails to Plaintiffs

Sep 03 2010

Green v. Beer, 2010 WL 3422723 (S.D.N.Y. Aug. 24, 2010)

In this day in age, it is easy to believe that everybody is familiar with email. That is not always the case. In this opinion, the district court reversed an order of the magistrate judge which found that plaintiffs’ attorney-client privilege was waived as a result of their son’s receipt of privileged emails where it was established that the son’s assistance was necessary to ensure plaintiffs’ timely receipt of the emails, in light of plaintiffs’ lack of email proficiency.

Court Finds No Spoliation as to Documents Produced from Backup Tapes because “Documents Were Never in Fact Destroyed”

Aug 30 2010

Pitney Bowes Gov. Solutions, Inc. v. United States, 2010 WL 3278402 (Fed. Cl. Aug. 19, 2010)

In this post-award bid protest, plaintiff sought spoliation sanctions for defendant’s destruction of relevant documents. Although most of the documents were deleted and/or destroyed by their original custodians upon the order of the contracting officer, the documents were available for production from backup tapes. The restored documents, however, all reflected the same author in their metadata, causing plaintiff to doubt their veracity and persist in its request for spoliation sanctions.

In “‘David-And-Goliath-Like’ Struggle for Electronic Discovery”, Court Orders Adverse Inference, Monetary Sanctions for Spoliation and Delay

Aug 27 2010

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was “at a minimum” negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For “prolonged delay” in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000.

Despite Negligent Preservation, Failure to Establish Relevance of Lost Emails Results in Denial of Motion for Sanctions

Aug 26 2010

Siani v. State Univ. of New York at Farmingdale, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010)

In this employment discrimination case, the court denied the pro se plaintiff’s motion for spoliation sanctions, despite finding defendants were at least negligent in their preservation efforts, where plaintiff failed to present extrinsic evidence “tending to show that the destroyed emails would have been favorable to his case.”

Court Compels Production of Relevant Content from Social Networking Sites

Aug 13 2010

EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010)

The EEOC, on behalf of two claimants, filed claims alleging sexual harassment. In the course of discovery, defendant sought production of claimants’ internet social networking site (“SNS”) profiles and other communications from claimants’ Facebook and MySpace.com accounts. Plaintiff resisted. Following its discussion of the “General Principles Applicable to Discovery of SNS” and the proper scope of discovery in the present case, the court determined that certain content was relevant and ordered plaintiff to produce the relevant information, subject to the guidelines identified by the court.

Court Enters Order on Sanctions in Phillip M. Adams & Assoc., Concludes Based on “Minimal Evidence” Presented that “It Is Not Clear that [Defendant] Spoliated Evidence”

Aug 10 2010

Phillip M. Adams & Assoc. LLC v. Winbond Elec. Corp., 2010 WL 2977228 (D. Utah July 21, 2010)

In March 2009, the court granted in part plaintiff’s motion for sanctions and ordered the parties to present evidence of prejudice before crafting an appropriate sanction. See, Phillip M. Adams & Assoc., LLC v. Dell, Inc.,621 F. Supp. 2d 1173 (D. Utah 2009). Following analysis of plaintiff’s “minimal evidence”, the court concluded it was “not clear that ASUS spoliated evidence.” The court nonetheless made clear the insufficiency of defendant’s preservation efforts, particularly with regard to original source code. Accordingly, the court declined to order terminating sanctions, but indicated that plaintiff would be allowed to argue to the jury that “ASUS should have the original source code to a program that it both patented and attempted to patent for many years” and that “[t]he jury will consider these facts and draw their inferences.”

Court Grants Defendant’s Motion for Entry of Clawback Provision

Aug 06 2010

Rajala v. McGuire Woods LLP, 2010 WL 2949582 (D. Kan. July 22, 2010)

Plaintiff, as Bankruptcy Trustee, brought suit against defendant, alleging several claims. The parties could not agree on the entry of a clawback provision. Accordingly, defendant moved the court to enter such a provision. Upon establishing its authority to enter such an order pursuant to Fed. R. Civ. P. 26(c)(1) and analysis of the relevant facts, the court granted the motion, with modification, and indicated that a separate order setting forth a clawback provision would be entered.

Court Orders Dismissal as Sanction for Egregious Discovery Violations

Aug 04 2010

Aliki Foods, LLC v. Otter Valley Foods, Inc., 726 F. Supp. 2d 159 (D. Conn. 2010)

Defendant moved to dismiss plaintiff’s claims as a sanction for discovery violations. Finding that plaintiff “acted willfully and in bad faith in repeatedly violating its discovery obligations and [the] Court’s orders”, including failing to timely respond to discovery despite a court order to do so and defying a court order to allow forensic examination of certain hard drives by giving its computers away without first searching them, the court granted defendant’s motion.

Archive - 2010