July 2012 – Electronic Discovery Law

Failure to Disable Auto-Delete and To Follow Up with Recipients of Litigation Hold Results in Adverse Inference

Jul 30 2012

Apple, Inc. v. Samsung Elecs. Co. Ltd., No. C 11-1846 LHK (PSG) (N.D. Cal. July 25, 2012)

In this case, the court sanctioned Defendant for the loss of relevant emails resulting from Defendant’s failure to halt the auto-delete feature of its proprietary email system and failure to appropriately follow up with employees subject to the litigation hold to ensure compliance. As a sanction, the court ordered an adverse inference instruction allowing the jury to presume that the evidence lost was both relevant and favorable to the plaintiff.

Da Silva Moore: Defendant Files Opposition to Plaintiffs’ Objection to Denial of Motion for Recusal or Disqualification

Jul 25 2012

On July 16, 2012, Defendant MSLGroup filed its Memorandum of Law in Opposition to Plaintiffs’ Rule 72(A) Objection to Magistrate Judge Peck’s June 15, 2012 Opinion and Order (which denied Plaintiffs’ Motion for Recusal or Disqualification). The memorandum is available here.

“Take it e-sy”

Jul 20 2012

K&L Gates partner Julie Anne Halter was featured on a Q&A panel of litigators discussing e-disclosure as a transformative tool in litigation. Panelists were asked:

With technology changing constantly, how can lawyers best use e-disclosure to help their clients through the litigation process? Four experts debate some of the hot topics in this area.

Read their debate

First published by The Lawyer on July 16, 2012.

Court Imposes Serious Sanctions for Discovery Violations, Orders Appointment of Special Master to Investigate Defendant’s Discovery Compliance

Jul 13 2012

E.E.O.C. v. Fry’s Elecs. Inc., No. C10-1562RSL (W.D. Wash. July 3, 2012)

In this case, the court twice imposed serious sanctions for Defendant’s discovery violations and ordered the appointment of a Special Master who was to be granted broad access to Defendant’s records and personnel to “review defendant’s document retention, search, and disclosure activities” and to “report to the court regarding any as-of-yet undiscovered discovery violations.”

Supreme Court of Florida Adopts Amendments to Civil Rules to Address e-Discovery

Jul 09 2012

On July 5, 2012, the Supreme Court of Florida adopted amendments to the Florida Rules of Civil Procedure to address the discovery of electronically stored information. The amendments will become effective September 1, 2012 at 12:02 a.m.

The amendments will affect seven rules of civil procedure: “1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena).”

The court’s order, available below, provides both a short discussion of the relevant changes and the text of the new rules as adopted, including committee notes which, although not adopted as an official part of the rules, do provide valuable insight into their meaning and intended use.

A copy of the court’s order adopting the amendments is available here.

Da Silva Moore: Plaintiffs Object to Denial of Motion for Recusal or Disqualification

Jul 09 2012

On June 29, 2012, Plaintiffs filed their Rule 72(A) objection to Magistrate Judge Peck’s denial of their Motion for Recusal or Disqualification. Plaintiffs’ brief is available below. (Plaintiffs’ declaration in support of their brief is over 500 pages long and is available on PACER at http://www.pacer.gov/.)

Plaintiffs’ Rule 72(A) Objection to the Magistrate’s June 15, 2012 Opinion and Order

Court Orders Production of Five Years of Content from Facebook, MySpace for Opposing Counsel’s Review

Jul 06 2012

Thompson v. Autoliv ASP, Inc., No. 2:09-cv-01375-PMP-VCF, 2012 WL 2342928 (D. Nev. June 20, 2012)

In this personal injury and product liability case, the court granted (in part) Defendant’s motion to compel production of the contents of Plaintiff’s Facebook and MySpace accounts from April 2007 through the present and ordered that the contents be uploaded to an external storage device and produced to defense counsel for review and identification of “discoverable” materials.

Court Rules Criminal Defendant’s Twitter Records, Including Tweets, Subject to Production

Jul 03 2012

People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct. 2012)

In a highly anticipated ruling, New York Judge Matthew A. Sciarrino Jr. has entered an order requiring Twitter Inc. to respond to a subpoena from the District Attorney’s Office and to produce both “non-content” and “content” information associated with the alleged account of criminal defendant Malcolm Harris. Twitter had moved to quash the subpoena after being ordered to comply following the court’s determination that Mr. Harris lacked standing to quash the subpoena himself.

Archive - July 2012