2010 – Page 32 – Electronic Discovery Law

Pursuant to Stored Communications Act, Court Quashes Subpoena for Private Messages, Remands for Further Consideration of Facebook Wall and MySpace Comments

Jun 11 2010

Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)

Defendant subpoenaed several social networking sites seeking disclosure of plaintiff’s subscriber information and communications relevant to the underlying dispute. Plaintiff sought to quash the subpoenas arguing that such disclosure would violate the Stored Communications Act (“SCA”). The magistrate judge denied plaintiff’s motion to quash upon finding the SCA was inapplicable. Plaintiff moved for reconsideration of the order.

Reckless and Grossly Negligent Failure to Preserve Results in Sanctions for Defendant

Jun 07 2010

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010)

Despite receipt of plaintiff’s EEOC claim alleging employment discrimination, defendant failed to institute a litigation hold. Instead, defendant identified three individuals likely to possess responsive information and asked them to identify and preserve relevant evidence. Some of the individuals identified were substantially involved in the alleged discriminatory treatment of the plaintiff. Despite this failure, defendant eventually produced most of the requested information, although some email was deemed likely to have been lost forever. Finding defendant’s preservation efforts “reckless and grossly negligent”, the court ordered sanctions.

Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes

Jun 04 2010

Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D. Ark. May 27, 2010)

In this collective action brought under the Fair Labor Standards Act, plaintiffs and defendant reached significant impasse regarding the appropriate scope of discovery, including disagreement regarding search terms, the number and identity of custodians, the sources of data to be searched, and who should bear the costs. Resolving each issue in turn, the court’s discussion focused in large part upon weighing the burden of plaintiffs’ requests against the potential to discover relevant information, including a discussion of the discoverability of backup tapes. The court also declined to shift the costs of production.

For Discovery Violations, Court Indicates Likelihood of Finding Agency Relationship Existed as a Matter of Law

Jun 02 2010

Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010)

For defendant’s and counsels’ discovery violations discovered with the assistance of a special master, including failing to adequately search for responsive material and misrepresenting search efforts to the court, the court indicated a likelihood that it would find as a matter of law that an agency relationship existed between defendant and another entity implicated in the underlying accident claims. Accordingly, a hearing was set to address the possible sanctions as well as the implications of counsels’ actions for their involvement with the case.

Seventh Circuit Issues Report on Phase One of Electronic Discovery Pilot Program

Jun 02 2010

Last month, the Seventh Circuit’s Electronic Discovery Pilot Program Committee released its report on phase one of its Electronic Discovery Pilot Program. Initiated as a “multi-year, multi-phase process to develop, implement, evaluate, and improve pretrial litigation procedures that would provide fairness and justice to all parties while seeking to reduce the cost and burden of electronic discovery consistent with Rule 1 of the Federal Rules of Civil Procedure”, the first phase of the program ended on May 1, 2010, after a seven month period in which the committee’s Principles Relating to the Discovery of Electronically Stored Information were tested in practice. Although limited in its geographic scope and number of participants, the results of phase one provide valuable insight into possible ways to better the current civil system. The second of three phases will begin on July 1, 2010 and may be expanded to increase the number of cases and participating judges.

Too lengthy to summarize, the full report is available here.

Judge Scheindlin Amends Recent Pension Opinion

Jun 01 2010

On May 28th, Judge Shira Scheindlin entered an order amending her recent opinion in Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC. The order provides important clarification regarding the scope of a party’s obligation to collect records from its employees. The order states:

At page 10, lines 7-10, replace <By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability.> with <By contrast, the failure to obtain records from all those employees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, could constitute negligence.>.

A full copy of the order is available here.

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.”

Archive - 2010