Catagory:Market Announcements

On August 14, 2009 the Judicial Council adopted amendments to California’s Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information when the parties “meet and confer” prior to the initial case management conference.  The amendments became effective immediately.

For a full copy of the amendments, click here.

Law.com, August 27, 2009
By Dan Levine

The Justice Department’s aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age.

In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California.  The computer files taken by the government revealed information about far more people — including professional baseball players and others — than allowed by a search warrant.

The decision reverses an earlier panel upholding the search.  It also represents the second high-profile drubbing that the U.S. Attorney’s Office for the Northern District of California has received from the 9th Circuit in as many weeks:  The appeals court just tossed former Brocade CEO Gregory Reyes’ backdating conviction because of prosecutorial misconduct.

Click here to read the full article.

By K&L Gates partner Todd Nunn.

This article appears in the summer edition of DRI’s E-Discovery Connection, and begins:

There are now rules specifically designed to protect the attorney-client privilege during document production:  Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502.  These rules provide a procedure for clawing back inadvertently produced attorney-client privilege and work product documents and a consistent framework for determining whether the privilege was waived.  However, protection of privilege remains one of the primary concerns, and cost drivers, of parties producing documents in discovery.

The goals of the holistic approach to privilege protection are to protect attorney-client privilege and work product documents from being produced.  Further, in the event of production, the goal is to have taken “reasonable steps” to protect the privilege from waiver under Federal Rules of Evidence 502(b).  The goal is to do this while also producing documents that are responsive to discovery requests in a timely and economical way.  This is made more challenging by the increasing volumes of electronically stored information (“ESI”) that must be screened for privilege.

Read a copy of the full article here.

Bloomberg.com, July 8, 2009
By David Voreacos and Mort Lucoff

July 8 (Bloomberg) — Switzerland said it would seize UBS AG data to prevent the U.S. Justice Department from pursuing a U.S. court order seeking the identities of 52,000 American account holders in a crackdown on tax evaders.

The assertion came in court papers yesterday in federal court in Miami, where the Justice Department sued UBS on Feb. 19, a day after the bank avoided U.S. prosecution for helping wealthy Americans evade taxes.  The U.S. effort to enforce a summons seeking the names would force UBS to violate Swiss laws barring disclosure of such data, the filing said.

The Swiss government “will use its legal authority to ensure that the bank cannot be pressured to transmit the information illegally, including if necessary by issuing an order taking effective control of the data at UBS that is the subject of the summons,” according to the filing.

Click here to read the full article.

After previously vetoing a prior version of the bill for budgetary reasons, Governor Schwarzenegger signed California’s Electronic Discovery Act last night, to be effective immediately. Closely tracking the 2006 amendments to the Federal Rules of Civil Procedure, the act institutes procedures to guide the discovery of electronically stored information in California.

To read the full text of the Electronic Discovery Act, click here.

On April 2, 2009, the Iowa Supreme Court approved the adoption of Evidence Rule 5.502 addressing the disclosure of information covered by the attorney-client privilege and work product.  Substantially similar to recently enacted Federal Rule of Evidence 502, the new rule outlines the effects of disclosure with regard to waiver, including the effect of inadvertent disclosure.  The rule became effective on June 1, 2009.

Click here to view the full text of the Supreme Court’s report.

Council of the City of New Orleans v. Washington, 9 So.3d 854 (La. 2009)

In this case, attorney Tracie Washington and others appealed a preliminary injunction from the District Court preventing the dissemination of emails received in response to a public records request. The injunction was issued in light of the City’s failure to properly review the documents for privileged information before production. Upon Washington’s appeal, the court of appeal determined the injunction violated the First Amendment and thus vacated the order of the District Court. The City Council of the City of New Orleans appealed.

On appeal, the Supreme Court of Louisiana vacated the judgment of the court of appeal upon finding that the First Amendment arguments upon which the court relied were presented for the first time on appeal and were therefore improperly considered. Accordingly, the matter was remanded for further proceeding.

A summary of the court of appeal’s opinion is available here.

Citizens for Responsibility and Ethics in Washington v. Office of Admin., 566 F.3d 219 (D.C. Cir. 2009)

Citizens for Responsibility and Ethics in Washington (“CREW”) alleged that “entities in the Office of Administration (OA) discovered in October 2005 that entities in the Executive Office of the President (EOP) had lost millions of White House emails.”  In April 2007, CREW filed a Freedom of Information Act (“FOIA”) request seeking OA’s production of “records related to the EOP’s email management system, reports analyzing problems with the system, records of retained e-mails and possibly missing ones, documents discussing plans to fine the missing e-mails, and proposals to instate a new e-mail records system.”  The OA initially agreed to produce the records but asked for an extended deadline to do so.  Upon missing the extended deadline, OA argued for the first time that it was not covered by FOIA “because it provides administrative support and services directly to the President and the staff in the EOP, putting it outside of FOIA’s definition of ‘agency.’”  Despite its resistance, the OA produced some records as a matter of “administrative discretion.”

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The Financial Industry Regulatory Authority (FINRA) announced this week that it has fined Centaurus Financial, Inc. $175,000 for failing to protect confidential customer information.  Specifically, between August 2006 and July 2007 Centaurus failed to employ adequate safeguards against infiltration of its fax server containing the information at issue.  Examples of the inadequate protection measures include the use of a “weak” username, “Administrator,” and the password “password.”  The company’s safety failures resulted in unknown persons conducting a “phishing” scam hosted by Centaurus’s fax server.  Additionally, Centaurus’s notification to customers regarding the breach in security was found to have been misleading.

To read the full text of FINRA’s press release regarding this decision, click here.
 

Announced this week, Broadcom Corporation and Qualcomm Incorporated have entered into a settlement and multi-year patent agreement.  Under the terms of the settlement agreement, Qualcomm has agreed to pay Broadcom $891 million over four years.  Other notable terms of the agreement include dismissal of all litigation between the companies and Broadcom’s withdrawal of its complaints to the European Commission and the Korea Fair Trade Commission.  According to Qualcomm’s press release, the parties have also agreed to grant one another certain rights under their respective patent portfolios.

To read the full text of Qualcomm’s recent press release, Click Here.