Electronic Discovery Law – Page 397 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Afremov v. Amplatz, 2006 WL 44341 (Minn. Ct. App. Jan. 10, 2006) (Unpublished)

Dec 01 2006

Key Insight: Lawyer for party successfully appealed sanctions imposed on him by trial court following emergency evidentiary hearing regarding the deletion of files from party’s home computer that was subject to inspection order; trial court violated lawyer’s due process protections by failing to provide sufficient notice of the purpose of the emergency hearing or the potential for sanctions

Nature of Case: Underlying claims were settled, and court appointed a receiver

Electronic Data Involved: Laptop computer, emails

Dehart v. Wal-Mart Stores, East, L.P., 2006 WL 83406 (W.D. Va. Jan. 9, 2006)

Dec 01 2006

Key Insight: Computer generated diary of investigation of incident by defendant’s adjusting company constituted work product and was protected from discovery

Nature of Case: Personal injury

Electronic Data Involved: Computer generated diary

Plaintiff’s Efforts to Preserve and Produce Email and Electronic Records Were Untimely and Inadequate; Court Invites Motion for Sanctions

Nov 27 2006

Reino de Espana v. Am. Bureau of Shipping, 2006 WL 3208579 (S.D.N.Y. Nov. 3, 2006)

This litigation arose from the casualty of the Prestige off the coast of Spain in November 2002, which caused a large oil spill. In this opinion, the court granted defendant ABS’s motion to compel the production of email and other electronic records prepared by various governmental agencies that were involved in the response to and investigation of the spill. In addition, the court invited ABS to seek sanctions for Spain’s apparent failure to preserve relevant evidence.
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Court Orders Production of Handwritten Worksheets Underlying Database, in Light of Demonstrated Data Entry Errors

Nov 27 2006

MacNamara v. City of New York, 2006 WL 3298911 (S.D.N.Y. Nov 13, 2006)

This case is one of many arising from the arrests of approximately 1,800 people during the Republican National Convention (“RNC”) in New York City in the summer of 2004. This decision addressed plaintiffs’ motion to compel the city to produce certain documents and electronically stored information. Among other rulings, the court granted plaintiffs’ request for production of certain arrest worksheets used in connection with the city’s Online Booking System ("OLBS"). The OLBS worksheets contained handwritten information regarding the arresting or assigned officer’s recollection of the events that preceded the arrest. The information on the worksheet is subsequently entered into the OLBS, often by someone other than the officer who filled out the worksheet. The city argued that the plaintiffs’ request for OLBS worksheets for non-party arrestees was duplicative, since the information sought could be found in database printouts the city had already agreed to produce. However, plaintiffs contended that “significant errors, edits and omissions” occur at the data entry stage, and that the information contained in the handwritten worksheets sought may therefore differ from that in the database printouts, which contained only the information actually entered into the OLBS. The court found that an example cited by plaintiffs supported their contention, and ordered production of the worksheets subject to an "attorneys’-eyes-only" designation.

Ruling on a separate request, the court sustained the city’s objection to plaintiffs’ request for "[a]ll electronic data concerning RNC arrests" maintained by various entities, finding it to be impermissibly vague.

Moure Quoted in Wall Street Journal

Nov 27 2006

Preston Gates partner Helen Bergman Moure was quoted in today’s Wall Street Journal in an article titled: New Rules Are Set for Federal Courts On Electronic Data.

"The changes "may serve as a wake-up call for some companies that haven’t been in a case where electronic [evidence] has been produced," says Helen Bergman Moure, an attorney in the document analysis technology group at Seattle law firm Preston Gates & Ellis LLP. The rules govern only federal cases and leave penalty decisions to judges."

The article appears on page B3 of the print edition or in electronic format here [subscription required.]

New E-Discovery Rules & The Attorney-Client Privilege: A Middle Ground for Waiver?

Nov 17 2006

A November 2006 article by Preston Gates partner Julie Anne Halter for the Washington Legal Foundation:

"The proposed amendments to the Federal Rules of Civil Procedure will go into effect on December 1, 2006, absent some affirmative act by Congress to prevent their adoption. Among the amendments are provisions designed to address the everapparent problem faced by corporate litigants: the volume of electronically stored information and the varying ways it is maintained make it very difficult and often cost-prohibitive to efficiently and effectively review it for privileged material prior to production. Under the current legal framework, the inadvertent production of privileged or work-product protected material creates substantial risk; at the same time, the effort and cost to conduct a comprehensive pre-production privilege review often make such review impractical."

Click here to continue reading.

Citing The Sedona Conference Glossary for E-Discovery, Court Overrules Vagueness and Ambiguity Objections to Request for Production

Nov 17 2006

Johnson v. Kraft Foods N. Am., Inc., 2006 WL 3302684 (D. Kan. Nov. 14, 2006)

In this decision, the court granted in part plaintiffs’ motion to compel and overruled a number of defendants’ objections to plaintiffs’ request for production. Among other things, defendants had objected that many of the terms used in the request were vague and ambiguous, including: “electronic databases,” “personnel related data,” “database,” “coded fields,” and “data dictionaries.” Overruling the objection, the court noted that plaintiffs had attempted to resolve any ambiguity by providing definitions in a separate letter. It also noted that, while the court’s electronic discovery guidelines did not specifically provide definitions for the terms in dispute by the parties, the guidelines did provide a valuable reference to the Sedona Conference® for definitions of terms used in the guidelines. It concluded:
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Court Grants Access to Individual Plaintiff’s Work and Home Computers; Plaintiff Had Continued Deleting Potentially Relevant Emails for Years After Commencing Litigation

Nov 16 2006

Ball v. Versar, Inc., 2005 WL 4881102 (S.D. Ind. Sept. 23, 2005)

This case involved the remediation of a “Superfund” hazardous waste site in Indiana. Plaintiffs Roy Ball and Norman Bernstein (the “trustees”) were trustees for the fund formed by the hazardous waste generators to clean up the site under agreement with the relevant governmental agencies. The trustees sued Versar, Inc. for breach of its contract to perform remediation services at the site. In this motion, the defendant sought production of email and other documents it contended the trustees were improperly withholding, access to plaintiff Roy Ball’s personal and employer-owned computers, and sanctions for plaintiffs’ failure to produce or retain discoverable electronic evidence. Read More

Bad Faith Spoliation of Critical Emails Warrants Adverse Inference Instruction

Nov 14 2006

Optowave Co., Ltd. v. Nikitin, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006)

In this breach of contract case, Optowave contended that its contract with defendant Dmitri Nikitin d/b/a Precision Technology Group (“PTG”) incorporated eight certain specifications, and that PTG failed to meet any of the specifications, thereby breaching the contract. During discovery, Optowave sought to compel production of electronic documents and emails regarding the contract. Following oral argument and the parties’ agreement on certain issues raised by the motion to compel, the court scheduled a second hearing on the issue of spoliation of certain internal emails between Nikitin and his employees. Read More

Supreme Court Refuses to Hear Qwest Case Involving Document Production

Nov 13 2006

[From the Associated Press, November 13, 2006 and posted on Law.com]

The Supreme Court on Monday refused to consider a case in which Qwest Communications International Inc. had been ordered to produce 220,000 pages of documents to shareholders in a civil securities fraud lawsuit.

Qwest attorneys had argued the documents were protected by attorney-client and work-product privilege.

Many shareholders involved in the lawsuit reached a $450 million class action settlement with Qwest, but claims are pending against former Chief Executive Officer Joseph Nacchio and former Chief Financial Officer Robert Woodruff.

The 10th U.S. Circuit Court of Appeals upheld a lower court’s decision that the company waived its privilege when it gave the documents to the Securities and Exchange Commission and Justice Department.

The shareholders sued the company in 2001, about a year before the Securities and Exchange Commission and the Justice Department opened separate investigations into accounting improprieties that eventually led Qwest to remove billions of dollars in improperly reported revenue from its books.

Based in Denver, Qwest is the primary phone service provider in 14 mostly Western states.

The case is Qwest Communications International Inc. v. New England Health Care Employees Pension Fund, 06-343.