Electronic Discovery Law – Page 339 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Governor Vetoes E-Discovery Amendments to California’s Civil Discovery Act

Oct 09 2008

On September 27, 2008, Governor Arnold Schwarzenegger vetoed Assembly Bill 926 (Evans), which contained e-discovery amendments to California’s Civil Discovery Act . In his veto message, the Governor explained:

The historic delay in passing the 2008-2009 State Budget has forced me to prioritize the bills sent to my desk at the end of the year’s legislative session. Given the delay, I am only signing bills that are the highest priority for California. This bill does not meet that standard and I cannot sign it at this time.

The amendments included in AB 926 closely tracked several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure. Among other things, the amendments:

Court Denies Relief Where Party Ignored Court’s Suggestions for Reducing Volume of ESI Captured by Keyword Search: “Defendants Must Now Lie in the Bed that They Have Made”

Oct 03 2008

Kipperman v. Onex Corp., 2008 WL 4372005 (N.D. Ga. Sept. 19, 2008)

In this case, Onex presented several motions to the court, including a motion for a protective order and for relief from the need to produce all documents identified after searching several backup tapes. The court denied in part and granted in part Onex’s motion, and ordered Onex to produce all identified documents, except for two specific categories deemed unlikely to contain relevant information.

United States Court of Federal Claims

Oct 01 2008

U.S. Court of Federal Claims
Rules of the United States Court of Federal Claims 16, 26, 33, 34, 37, 45

Reserving Judgment on Spoliation Pending Supplemental Briefing, Court Demands Answers to Eight Specific Questions

Sep 26 2008

Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)

In this breach of contract litigation over allegedly non-conforming goods, Glasforms moved for sanctions against third-party defendant Taishan Fiberglass for the spoliation and destruction of documents. Taishan had previously been ordered to produce a knowledgeable and fully prepared witness or witnesses to testify about ten topics not adequately addressed in the prior Rule 30(b)(6) deposition. In addition, Taishan was ordered to search for and produce all documents responsive to Glasform’s requests for production, including relevant internal email communications.

State Court Rejects Appeal of Discovery Order Requiring Production of “Broken” Computers

Sep 25 2008

Law Office of Douglas T. Harris, Esq. v. Philadelphia Waterfront Partners, LP, 957 A.2d 1223, 2008 Pa. Super. 222 (Pa. Super. Ct. 2008)

In this case involving breach of fiduciary duty and related claims, plaintiff had requested the production of certain email and documents maintained on the computers of two individual defendants. When defendants failed to produce the requested material, plaintiff moved to compel. At the hearing on the motion, defense counsel informed the court that the two computers were inoperable and that technicians were currently working on the computers. The court pressed defense counsel for an explanation of how the computers were broken, and observed that plaintiff was entitled to the information that had been requested. When the court asked defense counsel what order it should enter, defense counsel responded: “We can produce the computers.” After the court entered its order, defendants appealed.

Court Orders Defendant to Re-Produce Documents Previously Produced as TIFF Images, Setting Out Three Format of Production Options

Sep 24 2008

Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008)

In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions. Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF images. The court granted only that portion of the motion, and gave the defendant three options for its re-production: (1) provide any documents previously supplied as TIFF images in their native format, (2) provide the documents in another comparably searchable format, or (3) supply plaintiff with software for searching the TIFF images.

President Bush Signs into Law S. 2450, a Bill Adding New Rule 502 to the Federal Rules of Evidence

Sep 22 2008

On Friday, September 19, 2008, the President signed into law S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The legislation protects against the inadvertent waiver of the attorney-client privilege or the work product protection. S. 2450 is identical to proposed Evidence Rule 502, as approved by the Judicial Conference of the United States in September 2007.

Now that the bill has been signed by the President, it has been assigned Public Law Number 110-322 by the Office of the Federal Register. Next, OFR editors will prepare it for publication as a Slip Law, and then include it in the next edition of the United States Statutes at Large.

Public Law No. 110-322 is available here.

New Evidence Rule 502 will apply in all proceedings commenced after the date of enactment and, insofar as is just and practicable, in all proceedings pending on such date of enactment.

Additional information about the legislation may be found on the Library of Congress "Thomas" website, at http://www.govtrack.us/congress/bill.xpd?bill=s110-2450, and on the U.S. Courts’ Federal Rulemaking website.

Adverse Inference Instruction Warranted Where Spoliation Claim Supported by Credible Arguments, Witnesses and Evidence

Sep 20 2008

Babaev v. Grossman, 2008 WL 4185703 (E.D.N.Y. Sept. 8, 2008)

In this case, plaintiffs claimed that they were fraudulently induced to invest in defendant’s catering businesses, and sought to inspect defendants’ business records. Plaintiffs moved for an extension of time to complete their inspection, and also requested sanctions. They claimed that defendants had engaged in spoliation of evidence and willful refusal to produce documents, and also noted defendants’ “belated” claim that their computer had been lost or misplaced and that many reports and records were unavailable for that reason. Defendants argued that the “lost” computer had been kept at defendant’s prior place of work, and that when it was retrieved the files had been corrupted and could not be accessed. Defendants asserted that the computer had been discarded prior to the lawsuit.

Briefing Schedule Set for Outstanding Discovery Motions in Qualcomm v. Broadcom Litigation

Sep 19 2008

Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B (BLM), United States District Court for the Southern District of California

On September 16, 2008, Magistrate Judge Barbara L. Major set a briefing schedule for the five pending discovery motions filed by the parties, requiring any oppositions to be filed on or before October 3, and any replies to be filed on or before October 10, 2008. The discovery motions include Broadcom Corporation’s Motion to Compel Production of Documents by Qualcomm; three separate motions brought by the sanctioned attorneys to compel production of documents by Qualcomm, and Qualcomm’s Motion for a Protective Order. Magistrate Judge Major will conduct a hearing on the motions on October 29, 2008 at 2:00 p.m.

Adverse Inference and Other Sanctions Warranted for Plaintiff’s Failure to Produce Damaging Emails that were Eventually Produced by Third Party

Sep 19 2008

Metrokane, Inc. v. Built NY, Inc., 2008 WL 4185865 (S.D.N.Y. Sept. 3, 2008)

In this patent infringement litigation, BNY sought sanctions on the grounds that Metrokane failed to produce a series of emails said to be highly damaging to Metrokane’s case. BNY argued that the recent discovery of the existence of these emails through production by a non-party came too late to permit BNY to pursue otherwise crucial discovery concerning these communications. Metrokane contended that BNY failed to comply with various procedural requirements before filing the motion, and that it had not demonstrated any misconduct by Metrokane or any prejudice. Magistrate Judge Michael H. Dolinger rejected Metrokane’s procedural defense, and concluded that BNY sufficiently demonstrated discovery misconduct by Metrokane and resulting prejudice. Accordingly, the court granted a variety of remedies, including an adverse inference instruction.

Discovery in the case closed in June 2007, but disputes about Metrokane’s performance let to additional motion practice, including the enforcement of a deposition subpoena to the alleged designer of the infringing handbags (Mr. Kilduff). The court granted BNY’s motion to compel the deposition of Mr. Kilduff in October 2007, and his deposition and production of documents occurred in November 2007.