Electronic Discovery Law – Page 309 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Update: Supreme Court of Louisiana Vacates Court of Appeal’s Judgment to Vacate Preliminary Injunction of District Court, Remands for Further Proceedings

Jun 01 2009

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.

Court Rules Office of Administration Not Covered by Freedom of Information Act, Records Related to White House Email Management Systems Need not be Produced

May 27 2009

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.”

Court Finds Delay in Objecting to a Failure to Produce in Native Format Was “Patently Unreasonable” and Denies Defendant’s Motion to Compel Production; Court Also Denies Motion to Confirm Adequacy of Defendant’s Manual Search

May 27 2009

Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418 (D.N.J. 2009)

In this case, arising from allegations surrounding contaminated concrete following the demolition of a Ford plant in New Jersey, defendant Edgewood Properties (“Edgewood”) brought several motions before the court, including a motion to compel production of documents in their native format (or documents containing metadata) and a motion for an order granting Edgewood the right to confirm the adequacy of Ford’s manual collection process by searching the electronic systems of certain custodians. Finding Edgewood had waived its objection to the format of Ford’s production by failing to object within a reasonable time period, the court denied Edgewood’s motion to compel. The court also denied Edgewood’s motion to allow access to certain of Ford’s electronically-stored records citing inter alia the burden to Ford and Edgewood’s failure to make a showing of Ford’s purposeful or negligent withholding of documents.

Preliminary Injunction against Publication and Dissemination of Documents Received in Public Records Request Violates First Amendment

May 20 2009

Council of the City of New Orleans v. Washington, 13 So.3d 662 (La. Ct. App. 2009)

In this case, Relator Tracie Washington, a Louisiana attorney, and others, appealed the trial court’s issuance of a preliminary injunction which prevented them from publishing or disseminating documents received in response to a public records request and required that all documents be returned, among other restrictions. The request at issue sought email records from a number of City Council members from 2006 to the present. The documents produced were not reviewed for privilege prior to production. Accordingly, the City Council sought and received a preliminary injunction to prevent their dissemination and require their return. Relators appealed and the trial court was reversed upon the appellate court’s finding that the trial court’s injunction violated the Relators’ First Amendment rights.

Granting Motion to Compel, Court Orders Appointment of Independent Expert “to Retrieve any Deleted Responsive Files from Defendants’ Computers”

May 06 2009

Bank of Mongolia v. M & P Global Fin. Servs., Inc., 2009 WL 1117312 (S.D. Fla. Apr. 24, 2009)

In this case arising from allegations that defendants conspired to defraud plaintiff of $23 million, defendants failed to properly and timely respond to plaintiff’s requests for production of documents and failed to offer adequate justifications or explanations for such behavior. Additionally, despite initial representations that certain documents had been produced or were not in their possession, at hearing it became clear that such representations were not true. For example, despite claiming that all responsive documents had been produced, defense counsel admitted at hearing that defendants had not performed a search of all deleted and unsaved electronic documents. For defendants’ discovery failures, the court granted plaintiff’s motion to compel and ordered an independent forensic expert be allowed access to defendants’ computer systems to search for “deleted responsive files.” The court also granted plaintiff’s motion for attorney’s fees.

Federal Court Defers Final Ruling on Attorneys’ Fees Motion Related to Forensic Examination

May 05 2009

Technical Sales Assocs., Inc. v. Ohio Star Forge Co., Nos. 07-11745, 08-13365 (E.D. Mich. May 1, 2009)

In ongoing litigation over sales commissions, Plaintiff Technical Sales Associates, Inc. ("TSA") claims that Defendant Ohio Star Forge Comapny ("OSF") breached two separate sales representative agreements. After a protracted discovery dispute, TSA and OSF agreed to a forensic examination of OSF’s computers to search for a particular e-mail. The forensic examination was performed by a company hired by TSA called Midwest Data Group LLC ("Midwest"). During the forensic examination, Midwest found evidence that certain files had been deleted by OSF. Midwest’s reporting of its findings to TSA became the subject of cross-motions for sanctions which were ruled upon by the court on March 19, 2009. (See summary of March 19, 2009 opinion available here.)

Centaurus Financial Fined $175,000 for Failing to Protect Confidential Customer Information

Apr 30 2009

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.

Qualcomm Agrees To Pay Broadcom $891 Million as Part of Settlement Agreement

Apr 30 2009

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.

Acknowledging Trial Court’s Efforts to Fashion an Appropriate Sanction, Appellate Court Rejects Argument that Sanction was Punitive and Affirms Award of $90,000

Apr 24 2009

Oz Optics, Ltd. v. Hakimoglu, 2009 WL 1017042 (Cal. App. Apr. 15, 2009) (Unpublished)

In this case arising from defendant/appellant Hakimoglu’s breach of her employment contract, the trial court awarded $90,000 in monetary sanctions upon finding that Hakimoglu violated a court order to produce her laptop and spoliated evidence by using wiping software to delete potentially relevant data. Upon appeal of this issue, among others, the appellate court affirmed.

Keeping You Informed: K&L Gates Partners to Speak at Upcoming Events

Apr 21 2009

IQPC 7th Annual e-Discovery Conference

April 27-29, 2009
Le Meridien San Francisco
333 Battery Street
San Francisco, CA 94111

K&L Gates partner David Cohen will be a part of the panel leading the discussion at Workshop C entitled, “E-discovery In a Down Economy: Achieving Litigation Readiness While Cutting Costs & Improving Outcomes” scheduled to take place on April 27th at 2:45 PM. The discussion will address a myriad of topics including readiness through proper records management, the effect of the recent economic downturn, and best practices to reduce costs, among other things.

Click Here to register.