Catagory:Case Summaries

In re Aspartame Antitrust Litig., 817 F. Supp. 2d (E.D. Pa. 2011)

In this case, the court addressed plaintiffs’ motion to deny or reduce defendants’ bill of costs, and in particular their objections to the costs related to electronic discovery.  Recognizing that “taxing e-discovery is a new area of law where courts have diverged in their approaches,” the court denied plaintiff’s motion as to many of the costs at issue but did disallow or reduce some costs, including those incurred for the convenience of counsel.

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Pacific Coast Steel, Inc. v. Leany, No. 2:09-cv-12190-KJD-PAL, 2011 WL 4573243 (D. Nev. Sept. 30, 2011)

Plaintiffs purchased the assets of several companies in which Defendant Leany had an ownership interest and hired him as an Executive Vice President of Pacific Coast Steel (“PCS”).  Leany was eventually terminated and his computer seized.  The privileged documents at issue in this opinion were either on Leany’s work computer at the time of his termination or had been migrated to a PCS server from one of defendants’ servers that was purchased by the plaintiffs.  When litigation ensued, defendants sought the return of the privileged documents in plaintiffs’ possession and a protective order prohibiting inquiry into certain areas related to those documents.  The court declined to grant the protective order upon finding that defendants’ privilege was waived because of their failure to “take reasonable means to preserve the confidentiality of the privileged information.”

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By: Susan Altman, K&L Gates, Pittsburgh

The Ninth Circuit Court of Appeals, in its October 3, 2011 decision in Suzlon Energy Ltd v. Microsoft Corporation, has taken another step in defining the rights of people to protect their emails from being disclosed in civil court proceedings.  The question before the Suzlon court was whether a party can require a U.S. electronic communication service provider to produce emails stored on a U.S. server for the account of a non-U.S. national without regard to the safeguards and restrictions imposed by the Electronic Communications Privacy Act of 1986 (ECPA).  The court answered with a clear “no,” stating that the protections of the ECPA against unrestricted disclosure of emails by an electronic communication service provider apply to non-U.S. nationals as well as to U.S. citizens.

To continue reading, click here (and be taken to K&L Gates’ Legal Cloud Central Blog).

United Cent. Bank v. Kanan Fashions, Inc., No. 10 CV 331, 2011 WL 4396912 (N.D. Ill. Mar. 31, 2011); United Cent. Bank v. Kanan Fashions, Inc., No. 10 C 331, 2011 WL 4396856 (N.D. Ill. Sept. 21, 2011)

In this case, the magistrate judge recommended sanctions against defendants for their bad faith spoliation of a relevant server where the evidence strongly suggested that defendants arranged for the sale of the server to company in Dubai, which resulted in the unavailability of its admittedly relevant contents.  The magistrate judge declined to sanction defendants’ attorneys, however, where the evidence indicated that they made efforts to ensure preservation but were misled by their clients and unaware “of what was going on behind the scenes.”

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United States v. Briggs, No. 10CR184S, 2011 WL 4017886 (W.D.N.Y. Sept. 8, 2011)

Defendants were charged with several counts related to the distribution of cocaine.  In its disclosures, the Government produced thousands of pages of documents as well as audio recordings, none of which were text searchable.  Defendants sought reproduction.  Noting the lack of relevant criminal rules and discussing the requirements of Fed. R. Civ. P. 34, the court relied upon its inherent authority to order reproduction in native format or in a PDF format “suitable for searching.”

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Williams v. District of Columbia, 806 F. Supp. 2d (D.D.C. 2011)

In this case, the court denied the defendant’s motion to exclude an inadvertently produced email where the defendant failed to satisfy the burden of establishing that reasonable steps were taken to prevent disclosure and where the defendant failed to promptly take reasonable steps to rectify the error.  In so holding, the court rejected the defendant’s argument that its actions pursuant to Rule 26(b)(5)(B) (i.e. sending a written request for the return of the email) were sufficient to discharge its obligations under FRE 502(b)(3).

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Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011)

In this case, the Special Master considered the question of whether, under the particular circumstances of this case, emails and their attachments should be considered singular or separate entities and thus, whether they must be produced together.  While no definitive answer emerged, the Special Master’s consideration of the issues and resulting recommendation are illuminating, and were ultimately adopted by District Court Judge Shira Scheindlin.

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Katiroll Co., Inc. v. Kati Roll & Platters, Inc., No. 10-3620 (GEB), 2011 WL 3583408 (D.N.J. Aug. 3, 2011)

In this trademark infringement case, Plaintiff sought sanctions for defendants’ alleged spoliation of several categories of evidence, including the contents of the individual defendant’s Facebook page.  Specifically, plaintiff sought sanctions for the defendant’s failure to preserve his Facebook pages in their “original state” i.e., before they were taken down, and because he changed the Facebook profile picture (which had previously displayed the infringing trade dress at issue) without preserving the prior image.  The court held that while the spoliation was unintentional, it was nonetheless “somewhat prejudicial” and ordered the defendant to change the picture back for a brief time, to allow plaintiff to print whatever posts it found relevant.

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Thorncreek Apartments III, LLC v. Vill. of Park Forest, Nos. 8 C 1225, 08-C-0869, 08-C-4303, 2011 WL 3489828 (N.D. Ill. Aug. 9, 2011)

The court held that privilege was waived as to inadvertently produced documents where defendants failed to take reasonable steps to prevent disclosure and failed to rectify the error in a timely way.  In so finding, the court cited defendants’ failure to conduct a final check before production, the failure of the process to protect any privilege (all privileged documents were produced), the nine months between production and discovery of the disclosure, and the failure to timely produce a privilege log, among other things.

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United States v. Universal Health Servs., Inc., No. 1:07cv000054, 2011 WL 3426046 (W.D. Va. Aug. 5, 2011)

Here, the Commonwealth sought to avoid producing allegedly inaccessible information.  The court declined to excuse production, reasoning in part that it was the Commonwealth’s own “negligent failure to take steps to adequately preserve information” which rendered the information "less accessible."  Instead, the court indicated that it would order the backup tapes and forensic images be produced to defendants “for use by a commercial vendor” to retrieve the information “in a format usable by the Commonwealth” and that defendants would bear the costs, subject to a motion seeking reimbursement.

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