Catagory:Case Summaries

1
Court Imposes Serious Sanctions for Discovery Violations, Orders Appointment of Special Master to Investigate Defendant’s Discovery Compliance
2
Court Orders Production of Five Years of Content from Facebook, MySpace for Opposing Counsel’s Review
3
Court Rules Criminal Defendant’s Twitter Records, Including Tweets, Subject to Production
4
Failure to Discover Unintentional Production Despite Indications that “Something had Gone Profoundly Awry” Results in Waiver of Privilege
5
“Essentially Non-existent Document Retention Policy” Renders Defendants an “Unreliable Source of Discovery;” Court Grants Sanctions for False Statements, Discovery Violations
6
Expert’s Inadvertent Production Results in Waiver of Privilege Absent Sufficient Supervision by Counsel or Prompt Steps to Rectify Disclosure
7
Twitter Seeks To Quash Order Requiring Production of Account Holder’s User Information, Tweets
8
N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs
9
Criminal Defendant has No Standing to Quash Twitter Subpoena
10
District Court Judge Adopts Orders Approving Use of Predictive Coding, Denies Plaintiffs’ Objections

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

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.”

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

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.

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

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.

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Failure to Discover Unintentional Production Despite Indications that “Something had Gone Profoundly Awry” Results in Waiver of Privilege

D’Onofrio v. Borough of Seaside Park, No. 09-6220 (AET), 2012 WL 1949854 (D.N.J. May 30, 2012)

Here, the court held that privilege was waived as to unintentionally produced, privileged documents where, despite the reasonableness of Defendants’ initial efforts to preclude production, subsequent warnings that something was “profoundly awry with their document production and privilege review” failed to result in Defendants’ discovery that privileged information had been produced.

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“Essentially Non-existent Document Retention Policy” Renders Defendants an “Unreliable Source of Discovery;” Court Grants Sanctions for False Statements, Discovery Violations

Peter Kiewit Sons’, Inc. v. Wall Street Equity Group, Inc., No. 8:10CV365, 2012 WL 1852048 (D. Neb. May 18, 2012)

In this case, the court addressed several motions, including plaintiff’s motion for sanctions.  Upon analysis of the facts presented, the court determined that defendants made repeated misrepresentations to the court; failed to conduct an adequate search for responsive documents; and wrongfully discarded a relevant server, among other things.  Accordingly, the court ordered monetary sanctions, including payment of the costs of a forensic examination, and recommended an adverse inference instruction at trial.

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Expert’s Inadvertent Production Results in Waiver of Privilege Absent Sufficient Supervision by Counsel or Prompt Steps to Rectify Disclosure

Ceglia v. Zuckerberg, No. 10-CV-00569A(F), 2012 WL 1392965 (W.D.N.Y. Apr. 19, 2012)

In this case, the court addressed whether inadvertent production of an email by an information technology expert waived the attorney-client privilege.  Finding that the plaintiff neither took reasonable steps to prevent the email’s disclosure nor acted promptly to rectify the error upon its discovery, the court held that privilege was waived.

Plaintiff claimed that the at-issue email was inadvertently produced by an information technology expert who was hired to recover a particular document from a computer at plaintiff’s counsel’s office and who was instructed to produce that document to the digital forensic consulting firm retained by the defendants.  Specifically, plaintiff alleged that the expert mistakenly copied and produced (on CD) both the document he was instructed to recover and the privileged email to which it was attached.  Interestingly, defendants’ consultant claimed never to have received the CD and instead explained that the email and the attachment were forwarded directly from plaintiff’s counsel’s email account, with a short note from the expert.  Regardless of how the email was produced, approximately two weeks later, the recipient consulting firm disseminated the email in its native format to all parties to the action.  More than two months later, plaintiff claimed that the email was inadvertently produced and requested it be returned or destroyed.

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Twitter Seeks To Quash Order Requiring Production of Account Holder’s User Information, Tweets

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

Following up on the case summary from last week (posted May 1, 2012) in which the court denied defendant’s motion to quash the District Attorney’s subpoena and issued an order requiring the production of defendant’s user information and Tweets from Twitter, Inc., this week brings us Twitter, Inc.’s motion to quash the court’s order.  Filed on May 7, 2012, the motion seeks to quash the court’s order on the grounds that the order imposes an undue burden on Twitter for reasons including that it requires them to violate the law.

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N.D. California Court Declines to Follow Race Tires, Allows Taxation of e-Discovery Costs

In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, 2012 WL 1414111 (N.D. Cal. Apr. 20, 2012)

Plaintiffs moved for review of the clerk’s taxation of costs, including those related to electronic discovery.  Noting the recent decision of the Third Circuit in Race Tires America Inc. v. Hoosier Racing Tire Corp, which narrowly interpreted 28 U.S.C. § 1920(4) and which vacated a lower court’s approval of many costs related to electronic discovery, the California court nonetheless declined to disallow the costs related to electronic discovery in this case: 

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Criminal Defendant has No Standing to Quash Twitter Subpoena

People v. Harris, —N.Y.S.2d—, 2012 WL 1381238 (N.Y. Crim. Ct. Apr. 20, 2012)

In this case, the court held that the defendant did not have standing to move to quash a subpoena seeking production of his Tweets and the user information associated with his Twitter account because the defendant “had no proprietary interests” in the information sought and because his claimed privacy interest was “understandable” but “without merit.”

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District Court Judge Adopts Orders Approving Use of Predictive Coding, Denies Plaintiffs’ Objections

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Apr. 25, 2012)

In a much anticipated opinion, District Court Judge Andrew L. Carter, Jr. has denied the objections of Plaintiffs and upheld Magistrate Judge Peck’s orders approving Defendant’s use of predictive coding to review its own documents and adopting Defendant’s proposed protocol.

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