Electronic Discovery Law – Page 337 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Court Holds No Expectation of Privacy on Work Computer, Even for “Personal” Information

Nov 10 2008

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008)

In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search. Defendant argued that he, not his employer, owned the computers and that he therefore had a reasonable expectation of privacy as to the personal information stored on them. Finding that the employer, in fact, owned the computers and therefore had every right to consent to the search, the court denied defendant’s motion to suppress.

A Busy November: K&L Gates Partners to Speak at Several E-Discovery Events

Nov 07 2008

Allegheny County Bar Association CLE – T-BOLT: The Best of Legal Technology

November 10-11, 2008
David L. Lawrence Convention Center
1000 Fort Duquesne Blvd.
Pittsburgh, PA 15222

K&L Gates partner David Cohen is co-chair of this conference and will be among the presenters along with another K&L Gates partner, Thomas Smith.

David Cohen will be one of the speakers presenting “Using Automation for Litigation Support” on Tuesday, November 10th at 1:30 p.m. This session will address issues including docket management and scheduling, document management, and case organization and discuss how technology is helping litigators save time and achieve better results.

Thomas Smith will be one of the speakers presenting “Advanced Issues in e-Discovery” on Tuesday, November 11th at 11:00 a.m. This session will provide some “advanced tips” for how to better handle e-discovery and how to optimize outcomes, control costs, and avoid sanctions.

Click here for more information or to register.

Finding Defendants’ Proposed Search Protocol “Fundamentally Misguided,” Court Creates Own and Orders Search of “Any Depository” that May Contain the Information Sought

Nov 06 2008

D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129 (D.D.C. Oct. 2008)

In this gender discrimination case, the court held an evidentiary hearing to address plaintiff’s concerns regarding outstanding discovery. Plaintiff claimed that defendants had destroyed her former computer, which contained potentially relevant information, and had not produced all of the electronic information she requested. At the hearing, a representative of the defendants explained that plaintiff’s computer was “scrapped after he decided that it could not be used and also searched for items requested by plaintiff.” A representative also testified regarding additional searches performed to respond to plaintiff’s requests and explained the “Legato system,” a server which held a back up of plaintiff’s mailbox from 2004, made under order of the Justice Department in a separate matter. Defendants agreed to allow plaintiff’s expert to perform an in-person search of their servers, but the parties were unable to agree upon a protocol to guide that search.

K&L Gates Partner Receives E-Discovery Award at Annual Gala

Nov 05 2008

At the 2008 Vestige Annual E-Discovery Awards Gala in Cleveland, Ohio, on November 1, 2008, David Cohen, a K&L Gates Partner, received a "2008 ESI Technology Champion" award. David was 1 of 4 award winners, out of over 80 lawyers, judges and consultants nominated for the awards. He is based in the Pittsburgh office and co-chair of the firm’s e-DAT practice group.

The panel of 5 Judges included several lawyers, a forensic expert and a U.S. District Court Magistrate. The Awards Gala was a black tie event held at the Renaissance Hotel in Cleveland. The Honorable Thomas J. Moyer, Chief Judge of the Supreme Court of Ohio, served as the Keynote Speaker.

Magistrate Judge Recommends Default Judgment in Favor of Plaintiffs and for Defendants to Pay “All Reasonable Costs” Related to Discovery Dispute

Nov 05 2008

Gutman v. Klein, 2008 WL 4682208 (E.D.N.Y. Oct 15, 2008)

In this case arising from accusations of fraud, among other things, plaintiffs moved for spoliation sanctions against the defendants to include default judgment, reimbursement of plaintiffs’ attorney’s fees and costs incurred as a result of the discovery dispute, and punitive monetary sanctions. Specifically, plaintiffs alleged egregious spoliation of defendant Klein’s laptop. Suspicion of spoliation initially arose when Klein resisted the court’s order to allow his laptop and other computers to be copied, and was later exacerbated because when the laptop was finally produced it was “hot to the touch and a screw was missing from its hard drive enclosure.” In light of these facts, the court appointed a forensic expert to examine the evidence for spoliation and provide a detailed report.

Court Orders Production of Relevant Source Code Citing Defendant’s Suggestion for Mitigating Costs

Nov 05 2008

Metavante Corp. v. Emigrant Savings Bank, 2008 WL 4722336 (E.D. Wis. Oct. 24, 2008)

In this breach of contract case, Emigrant filed several motions to compel Metavante’s response to multiple discovery requests. One motion sought the production of source code from the product delivered to Emigrant under the parties’ technology outsourcing agreement. Under the agreement, Metavante was to provide Emigrant with an online direct banking product called EmigrantDirect.

Emigrant argued that access to the source code may provide information about the quality of the product and was therefore relevant and properly discoverable. Metavante argued that its production would be unduly burdensome because it would cost over $300,000 and take over 5,000 hours to produce. Metavante also argued that the code would provide little relevant information. Emigrant responded arguing that Metavante’s estimates assumed a need to sort and compile all of the information before disclosing it and suggested it could mitigate the cost to Metavante by providing the code to outside consultants for inspection and a determination regarding relevance. The court found that the source code was relevant and, citing Emigrant’s offer to use outside consultants, found that “[i]n balancing the value of the source code against the burden of producing it…the potential value outweighs the burden.” The court also noted that any confidentiality concerns were addressed by its previously issued protective order.

Recognizing Danger of Loss, Court Orders Expedited Discovery Including Copying of Defendants’ Hard Drives

Oct 30 2008

Allcare Dental Mgmt., LLC v. Zrinyi, DDS, 2008 WL 4649131 (D. Idaho Oct. 20, 2008)

In this defamation case, plaintiffs sought an order allowing expedited discovery. Specifically, plaintiffs sought permission to serve a subpoena duces tecum upon Cable One, Inc., an Internet service provider and non-party to the action, for information related to the claims in the case and the potential identification of Doe Defendants. Plaintiffs also sought an order allowing them to take images of the hard drives of any computer owned or used by the named defendants for the preservation of electronically stored information related to the claims in the case and the potential identification of Doe Defendants.

K&L Gates Lawyers Make Major Contributions to E-Discovery Publication

Oct 29 2008

Available now from PBI Press, e-Discovery provides guidance for practitioners of all levels of experience through the often complicated world of e-discovery.

Once again showcasing the depth of knowledge at the firm, four of the fifteen contributing authors to the publication are members of the K&L Gates e-Discovery Analysis and Technology Group. Those members are Tom Smith, David Cohen, Daniel Miller, and Lynn Reilly.

To learn more about this valuable resource or to purchase a copy of your own, click here.

Newly Released Securities and Exchange Commission Enforcement Manual (“Red Book”) Provides Guidance on Treatment of Electronic Information

Oct 28 2008

For the first time, the SEC has released its Enforcement Manual, also known as the "Red Book” to the public. Although the manual is intended to provide guidance to members of the SEC’s Division of Enforcement, it is a valuable resource for anyone involved in a SEC investigation.

Several sections address the topic of electronic information. For example, section 3.2.6.2, “Form of Production,” provides a detailed explanation of what is expected of those responding to an SEC subpoena, including a discussion of the SEC’s preference for electronic production. Section 3.2.6.2.3, “Format for Electronic Production of Documents to the SEC,” provides even greater detail regarding the production of electronic information. The manual also provides valuable guidance on privilege logs, bates stamping, records certifications and much more.

The full text of the Enforcement Manual is available here.

Court Declines to Require Plaintiff to Designate Specifically Confidential Portions of Documents during Discovery where Entire Document does not Rise to that Level

Oct 28 2008

Containment Tech. Group, Inc. v. Am. Soc’y of Health Sys. Pharmacists, 2008 WL 4545310 (S.D. Ind. Oct. 10, 2008)

In this defamation case, the parties disagreed over the scope of a protective order sought by plaintiff prior to production of proprietary information, among other things. The parties attempted to negotiate the terms of such an order, but could not agree on several issues, including whether only portions of documents should be designated as “confidential” if the entire document did not rise to that level. Under the parties’ proposed terms, materials designated “confidential” would have automatically been sealed if filed with the court.