Electronic Discovery Law – Page 315 – Legal issues, news and best practices relating to the discovery of electronically stored information.

One More Round: Court of Appeals Affirms All but Scope of Remedy, Remands with Specific Instructions to Narrow Scope

Dec 03 2008

Qualcomm Inc. v. Broadcom Corp., 548 F.3d 1004 (Fed. Cir. 2008)

On December 1, 2008, the Court of Appeals for the Federal Circuit issued its opinion affirming the lower court’s findings that Qualcomm breached its duty to disclose the patents at issue in the underlying case and thus waived the enforceability of those patents. The Court of Appeals also upheld the lower court’s finding that this constituted an “exceptional case,” and the resulting award of attorney’s fees to Broadcom. The Court of Appeals took exception, however, to the scope of the waiver remedy articulated by the lower court, vacated that portion of the order and remanded the case with instructions to narrow the scope.

Option One Mortg. Corp. v. Universal Mortg. Group, Inc., 2008 WL 6928158 (D.S.C. Aug. 27, 2008)

Dec 01 2008

Key Insight: Despite indicating concern regarding the cross-claim plaintiff?s deletion of employees? emails after firing them for inappropriate accounting, the court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to identify evidence indicating that the emails would have contained relevant evidence and where fact discovery had been closed for more than a year and plaintiff ?appear[ed] to have presented what it view[ed] as a quite complete theory of the case using the voluminous evidence? available to it

Electronic Data Involved: Emails of fired employees

Meccatech, Inc. v. Kiser, 2008 WL 6010937 (D. Neb. Apr. 2, 2008)

Dec 01 2008

Key Insight: Where the court found that defendants had ?intentionally destroyed or withheld? ESI, including by deleting relevant evidence or attempting to discard a relevant hard drive (which was instead saved by the technician defendant told to discard it), and where the destruction resulted in prejudice to the plaintiff, the court ordered default judgment against defendant and other evidentiary sanctions

Electronic Data Involved: ESI

Reckley v. City of Springfield, 2008 WL 5234356 (S.D. Ohio Dec. 12, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of inadvertently produced emails pursuant to ER 502(b) where some of the emails were marked attorney-client privileged, where counsel took prompt steps to claim the privilege and seek their return, and where the disclosure ?took place in the context particularly intended to be addressed by Fed. R. Evid. 502, the production of electronically stored information.?

Electronic Data Involved: Emails

Am. Mfr. Mut. Ins. Co. v. Payton Lane Nursing Home, 2008 WL 5231831 (E.D.N.Y. Dec. 11, 2008)

Dec 01 2008

Key Insight: Where plaintiffs? privilege log specified doc type, doc date, bates numbers, author, recipients and a document title but did not sufficiently describe the content of the document, court ordered production of proper log that must ?identify each document with specificity as is need to demonstrate the communication was made for the purpose of obtaining or providing legal services and that the communication was intended to be and was kept confidential.?

Electronic Data Involved: Privileged email and hard copy communications

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D. Fla. Dec. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?

Electronic Data Involved: ESI, “.sav” data

Baxter Healthcare Corp. v. Fresenius Med. Care Holding, Inc., 2008 WL 5214283 (N.D. Cal. Dec. 12, 2008)

Dec 01 2008

Key Insight: Where defendant offered to produce a witness to authenticate a ?manageable number of documents? that plaintiffs would ?actually use at trial?, court denied plaintiffs? motion to compel production of a witness knowledgeable enough to authenticate thousands of documents and more than 580 CD-Rom discs of electronic files and source code and concluded that plaintiffs? motion was ?unreasonable and not supported by either the rules or the law?

Electronic Data Involved: ESI

Klayman v. Freedom’s Watch, Inc., 2008 WL 5111293 (S.D. Fla. Dec. 4, 2008)

Dec 01 2008

Key Insight: Court denied defendants’ motion for taxation of e-discovery costs amounting to $150,000 where defendant retained an outside firm to handle collections but failed to show the costs were “reasonable costs” pursuant to U.S.C ? 1920(4); court noted that “[i]n a non-electronic document case this work would be performed by paralegals and associate attorneys and would not be compensable under 28 U.S.C. ? 1920.”

Electronic Data Involved: ESI

Relion v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D. Or. Dec. 4, 2008)

Dec 01 2008

Key Insight: Finding that plaintiff ?did not pursue all reasonable means of preserving privilege? court found that attorney client privilege was waived when plaintiff unintentionally produced two privileged emails in hard copy despite conducting a privilege review and because plaintiffs failed to discover the production until revealed by defendants despite having both paper and electronic, text-searchable copies of the documents produced

Electronic Data Involved: Email

Martone v. Burgess, 2008 WL 5120047 (N.D. Cal. Dec. 3, 2008)

Dec 01 2008

Key Insight: Where defendants failed to demonstrate prejudice if required to preserve information, failed to adequately establish the inaccessibility of the information sought, and failed to demonstrate the absence of ?questions serious enough to require litigation,? court granted plaintiffs? motion for preliminary injunction and preservation order requiring defendants to preserve information useful for identifying persons accessing plaintiffs? intellectual property through defendants? website

Electronic Data Involved: Information regarding visitors to a particular website