Legal issues, news and best practices relating to the discovery of electronically stored information.
Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006)
This opinion describes the court’s in camera review of mathematical spreadsheets and other documents (“adverse impact documents”) inadvertently disclosed by the defendant, and concludes that no waiver was effected. All five relevant factors considered by the court weighed against finding waiver:
At its June 22-23, 2006 meeting, the Committee on Rules of Practice and Procedure approved the recommendations of the Advisory Committee on Evidence Rules, and approved publishing for public comment proposed new Evidence Rule 502. The proposed new rule “opts for the middle ground” in determining whether inadvertent disclosure is a waiver, in accord with the majority view. Under the new rule, inadvertent disclosure of privileged or protected information during discovery would constitute a waiver only if the party did not take reasonable precautions to prevent disclosure and did not make reasonable and prompt efforts to rectify the error. The proposed new rule will be published for public comment in August 2006.
A copy of proposed new Evidence Rule 502 and the accompanying Committee Note is available here as an attachment to the May 15, 2006 Report of the Advisory Committee on Evidence Rules.
Deipenhorst v. City of Battle Creek, 2006 WL 1851243 (W.D. Mich. June 30, 2006)
In this sexual harassment action, a former police department employee asserted that her supervisor (Sgt. Penning) subjected her to unwelcome sexual advances and requests for sexual favors. This memorandum opinion grants Sgt. Penning’s motion to compel the production of original journals, notes, calendars, and other documents, so that defendant’s forensic document expert might subject these items to nondestructive testing. The court rejected as unreasonable the conditions proposed by plaintiff that her own expert, as well as perhaps plaintiff’s counsel, be present at all times during the forensic examination by defendant’s document expert. The court noted that, in general, each party should be free to engage in its own trial preparation unhampered by the intrusive supervision of the opposing party. “In cases such as this, where purely nondestructive testing is proposed, the court generally allows the examiner to perform his or her work without being scrutinized by the opposing expert.” Further, the court observed that defendant’s expert would be required to file a Rule 26(a)(2) report disclosing all his findings and would be subject to deposition and cross-examination. “This provides sufficient safeguard for any legitimate concern by plaintiff regarding the expert’s methodology.”
Advante Int’l Corp. v. Mintel Learning Tech., 2006 WL 1806151 (N.D. Cal. June 29, 2006)
In this order, the court denied defendant’s motion to allow the forensic examination of plaintiff’s computer hard drives. Although the court noted that, in some cases, it may be appropriate to allow a forensic examination of computer hard drives, it concluded that defendant’s unsupported accusations of misconduct did not justify the remedy sought: Read More
Todd Nunn, Preston Gates partner, will be a featured speaker at the upcoming Estrin LegalEd Paralegal SuperConference Minneapolis on September 14-15, 2006. The way in which e-discovery requests are handled can have a direct and profound impact on the outcome of litigation. This workshop will illustrate the importance of having a well-reasoned response plan that provides the necessary guidance for efficiently preserving, collecting and reviewing for relevant documents, all while ensuring that e-discovery requests are dealt with promptly and with minimal impact on their ability to do business. For complete conference information, click here.
Vioxx Prods. Liab. Litig. Steering Comm. v. Merck & Co., Inc., 2006 WL 1726675 (5th Cir. May 26, 2006)
Merck Company, Inc. (“Merck”) sought interlocutory appeal and a writ of mandamus in response to the district court’s ruling on Merck’s attorney-client privilege claim as to certain documents sought in connection with Vioxx Products Liability multi-district litigation (“MDL”). Timely resolution of the privilege claim was deemed crucial to many of the thousands of cases included in the MDL. Although the Fifth Circuit found that it did not have appellate jurisdiction, it did order the re-examination of documents.
In re NYSE Specialists Sec. Litig., 2006 WL 1704447 (S.D.N.Y. June 14, 2006)
In this ruling regarding various class certification discovery issues, the court ordered:
Maga?a v. Hyundai Motor America, No. 00-2-00553-2 (Clark County, Wash. Super. Ct. Feb. 15, 2006) (Findings of Fact and Conclusions of Law Re: Default Judgment)
At the first trial of this product liability case, the jury awarded plaintiff over $8 million in damages for injuries he sustained after he was ejected out of the hatchback of a 1996 Hyundai Accent in a 1997 accident. Hyundai appealed liability but not damages, and the case was remanded for a second trial on the issue of liability. Preparing for the second trial, plaintiff filed a motion to compel defendants to produce documents relating to other similar incidents. The court granted the motion, and ordered Hyundai to produce “Police Reports, legal claims, consumer Complaints and Expert Reports or Depositions and Exhibits and photographs thereto with respect to all consumer complaints and lawsuits involving allegations of seatback failure on all Hyundai vehicles with single recliner mechanisms regardless of incident date and regardless of model year.” Hyundai was ordered to produce all legal claims, consumer complaints and policy reports by November 21, 2005, and to produce all expert reports, photographs, depositions and exhibits thereto by December 1, 2005.
In re Qwest Communications Int’l, Inc., 2006 WL 1668246 (10th Cir. June 19, 2006)
In this mandamus action, Qwest Communications International, Inc. presented an issue of first impression in the 10th Circuit, namely, whether Qwest waived the attorney-client privilege and work-product doctrine, as to third-party civil litigants, by releasing privileged materials to federal agencies in the course of the agencies’ investigation of Qwest. Qwest urged the appellate court to adopt a rule of “selective waiver” or “limited waiver” which would allow production of attorney-client privileged and work-product documents to the United States Department of Justice and the Securities and Exchange Commission without waiver of further protection for those materials. The court held that the district court did not abuse its discretion in declining to apply selective waiver and denied Qwest’s petition for a writ of mandamus. Read More
Inventory Locator Serv. LLC v. Partsbase, Inc., 2006 WL 1646091 (W.D. Tenn. June 14, 2006)
In this case, plaintiff brought claims under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, alleging that defendant obtained unlawful access to plaintiff’s computerized database. Defendant counterclaimed, alleging similar conduct by plaintiff. Plaintiff moved to strike the counterclaim and for the appointment of a special master under Rule 53(b) of the Federal Rules of Civil Procedure to determine whether defendant fabricated evidence. Plaintiff offered to pay the initial costs associated with the appointment of a special master. Read More
Copyright © 2022, K&L Gates LLP. All Rights Reserved.