Electronic Discovery Law – Page 404 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Are Litigators Ready for the New Meet-and-Confer Sessions?

Jul 25 2006

In an article in the National Law Journal, Carolyn Southerland writes, "Lawyers accustomed to what has been described by at least one federal district judge as "drive-by" meet and confers under the federal rules should get ready to park and prepare for an extended conversation. Whether one is a data producer (traditionally defendants) or a data requester (traditionally plaintiffs), the amendments to Rule 26(f) of the Federal Rules of Civil Procedure are going to profoundly affect parties’ discussions in "meet and confer" discussions concerning discovery.

For Luddite lawyers, these rule changes will require that they venture into a world that they dislike and perhaps on some level fear. But just as lawyers have survived past changes in the rules, they will survive these, too, and their clients and practices may well be better for it."

Click here for the full story.

Court Denies Discovery Related to Party’s Document Retention Policies and Computer Systems and Finds Hard Copy Production Adequate

Jul 25 2006

India Brewing, Inc. v. Miller Brewing Co., 2006 WL 2023396 (E.D. Wis. July 13, 2006)

In this case involving claims and counterclaims alleging breach of contract, fraudulent inducement, and negligent misrepresentation, the court ruled on plaintiff’s motion to compel discovery. Read More

Court Quashes Subpoena to Defendants’ Computer Forensics Consultant

Jul 24 2006

Trammell v. Anderson Coll., 2006 WL 1997425 (D.S.C. July 17, 2006)

In this employment discrimination case, plaintiffs alleged that plaintiff Dr. Jena Trammell, a tenured professor at defendant Anderson College, was subjected to a hostile work environment by another professor (Dr. Teitloff) and that the College retaliated against her for filing a claim with the EEOC. Read More

Summary Judgment Not Avoided By Reviving Past Discovery Disputes; Court Criticizes Plaintiff’s Overly Broad Pre-Suit Preservation Letter

Jul 21 2006

Turner v. Resort Condos. Int’l, LLC, 2006 WL 1990379 (S.D. Ind. July 13, 2006)

In this opinion, the court granted defendants’ motion for summary judgment on plaintiff’s pregnancy discrimination claim, and denied plaintiff’s motion for sanctions based on alleged discovery abuses. In ruling on the motion for summary judgment, the court found that plaintiff had not come forward with any evidence that raised a reasonable dispute about the reasons behind her termination. “She has noted the use of two font sizes on a single document and metadata suggesting that one of the [Reduction in Force] lists was modified after the lawsuit was filed. However, the most recent document production and the deposition testimony of RCI’s in-house information technology witness establish that at least nine emails confirmed Turner’s inclusion in the RIF before she told anyone at RCI that she was pregnant.” Read More

Magistrate Approves Petition for $72,910 in Attorneys’ Fees and Costs Relating to Discovery Dispute

Jul 19 2006

McDowell v. Gov’t of D.C., 2006 WL 1933809 (D.D.C. July 11, 2006)

In an earlier opinion, summarized here, Magistrate Judge John A. Facciola denied the plaintiff’s request for judgment to be entered against the defendant for various discovery failings. The court concluded that the discovery dispute could be adequately remedied by the imposition of attorneys’ fees and costs against defendants and the possibility of a jury instruction. In this opinion, the court evaluated plaintiffs’ fee petition and awarded plaintiff $72,910 in fees and costs.

Court Denies Motion to Compel Return of Inadvertently Produced Privileged Materials

Jul 18 2006

Marrero Hernandez v. Esso Standard Oil Co., 2006 WL 1967364 (D. Puerto Rico July 11, 2006)

In this opinion, the court used a five-factor test to conclude that the defendant’s “inadvertent” production of privileged materials effected a waiver.

On March 14, 2006, a third-party defendant in the case filed a motion for permission to file a counterclaim against Esso. Attached to the proposed counterclaim were several documents that were stamped with the prefix "VEGAC." Those documents had been disclosed by Esso during the months of November and December 2005. Three days later, Esso recognized the exhibits as privileged and claimed that they were inadvertently produced due to an "errant mouse click."

“Meeting the Demands of Document Retention — SOX Compliance, Risk Reduction and Information Management”

Jul 18 2006

This "Live, Interactive Teleconference with Q & A Session" is scheduled for Wednesday, July 26, 2006, from 10:00 – 11:30 a.m. Pacific Time. Preston Gates partner Todd L. Nunn, will serve as a panelist serving practical strategies for reducing the risk associated with information management and preservation. For additional details on this conference sponsored by Strafford Publications, Inc., click here.

Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search

Jul 17 2006

Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)

Plaintiff Jonathan Peskoff sued to recover damages for financial injury resulting from defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP, and the fund’s related entities. NextPoint GP, LLC ("NextPoint GP") was the general partner of the venture capital fund. Both Peskoff and Faber were managing members of NextPoint GP. Peskoff alleged fraud and related claims.

E-Discovery and the Proposed Amendments to the Federal Rules of Civil Procedure – Panel Discussion

Jul 14 2006

Preston Gates’ Helen Moure will be a panelist for this discussion forum scheduled from 12:15-1:15 PM on Tuesday, July 18, 2006, Rainier Square Conference Center, 1301 Fifth Avenue, Atrium Level 3 (between Fourth & Fifth and Union & University), Seattle, Washington. The session will feature The Honorable Ronald J. Hedges, United States Magistrate Judge, Newark, New Jersey and is co-sponsored by the Federal Bar Association of the Western District of Washington and the King County Bar Association.

Court Issues Order to Show Cause Regarding Possible Destruction of Documents; Ultimately Declines to Issue Adverse Inference Instruction

Jul 14 2006

Washington Alder LLC v. Weyerhaeuser Co., 2004 WL 4076674 (D. Or. May 5, 2004)

In this recently published opinion, the court set forth its corrected order to show cause why sanctions should not be imposed on Weyerhaeuser for failing to preserve electronic and paper records potentially relating to antitrust litigation after June 8, 1999, when Weyerhaeuser was notified of a forthcoming antitrust claim. Plaintiff claimed that Weyerhaeuser apparently did not issue a records retention order until April 2003, and that documents potentially relevant to the case – both electronic and paper – may have been destroyed prior to then, either deliberately or by failing to take the steps necessary to preserve those documents. Plaintiff asked the court to instruct the jury that it may draw an adverse inference from the destruction of documents.