Huggins v. Prince George’s Cnty, 750 F. Supp. 2d 549 (D. Md. 2010)
In this litigation arising from a dispute between plaintiff, a landowner, and the County regarding the plaintiff’s use of her land, the court found that the defendant was not subject to sanctions for the destruction of a former employee’s email pursuant to County policy where no duty to preserve existed at the time of their destruction.
Thomson Reuters 14th Annual Electronic Discovery and Records Retention Conference – Achieving Practical Proportionality
Dec. 1-2, 2010
San Francisco Marriott Marquis
55 4th St.
San Francisco, CA 94103
K&L Gates Partner Julie Anne Halter will participate in this conference which will address a myriad of topics, including e-discovery in all cases, proportionality, early case assessment, litigation with the government and much more.
To learn more or to register, click here.
As of November 1, 2010, Oklahoma’s Code of Civil Procedure specifically provides for the discovery of electronically stored information (“ESI”). Closely mirroring the Federal Rules of Civil Procedure, the Code addresses issues including the identification of “not reasonably accessible” information, the format of production, and sanctions for the loss of ESI resulting from the routine, good-faith operation of an electronic information system.
Oklahoma’s Code of Civil Procedure is available here.
United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 21, 2010) (Not for Publication)
For the Government’s failure to preserve text messages sent between investigating agents and a cooperating witness, the court found sanctions were warranted and ordered that the jury would received a “spoliation charge” allowing (but not requiring) it to infer that the deleted messages were favorable to the defendants.
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.
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.
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”).
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.
Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery. The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today. Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.” Those principles are:
By Julie Anne Halter, K&L Gates
This article appears in the October 2010 edition of DeNovo, the official publication of the Washington State Bar Association Young Lawyers Division.
In 2007, the “digital universe” contained 280,000,000,000 gigabytes of data – roughly 45 gigabytes (or the paper equivalent of 2.25 million pages) for each person on the planet. Commentators predict that by 2011, the digital universe will be 10 times the size it was in 2006. And if you take a minute to consider the last time you wrote or received a hand-written letter, used a pay phone, or consulted a casebook to answer a burning legal question, there is no denying that the world has evolved … and with it, litigation.
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