Electronic Discovery Law – Page 421 – Legal issues, news and best practices relating to the discovery of electronically stored information.

United States v. Arthur Andersen, LLP, 374 F.3d 281 (5th Cir. 2004), rev’d, 125 S.Ct. 2129 (2005)

Dec 01 2005

Key Insight: Conviction of Arthur Anderson for obstructing an official proceeding of the SEC affirmed; conviction was based on government’s allegations that, in order to protect the firm and the firm’s largest single account (Enron), Anderson ordered a mass destruction of documents to keep them from the hands of the SEC; Anderson unsuccessfully attempted to cloak the destruction of documents under the auspices of its document retention policies

Nature of Case: Criminal charge of obstructing an official proceeding of the SEC

Electronic Data Involved: Email and hard copy documents

Procter & Gamble Co. v. Haugen, 2003 WL 22080734 (D. Utah Aug. 19, 2003), aff’d in part, rev’d in part, and remanded, 427 F.3d 727 (10th Cir. 2005)

Dec 01 2005

Key Insight: Court granted defendants’ motion for sanctions and dismissed case with prejudice because, among other things, plaintiffs had failed to preserve relevant electronic data that plaintiffs knew were critical, and it would be impossible for defendants to defend the case without the electronic data that was not produced and no longer available

Nature of Case: Business sued competitors for defamation and unfair competition

Electronic Data Involved: Electronic data

Ferrero v. Henderson, 341 F.Supp.2d 873 (S.D. Ohio 2004), opinion withdrawn in part on reconsideration, 2005 WL 1802134 (S.D. Ohio July 28, 2005)

Dec 01 2005

Key Insight: Although plaintiff was unable to make out FMLA claim, court sanctioned defendant under Rule 26(g)(3) for failure to timely produce dispositive payroll data, and ordered it to pay plaintiff the reasonable attorney fees and expenses incurred in prosecuting FMLA claim, including but not limited to the time her attorney spent in pretrial preparation of the claim and in prosecuting the claim at trial

Nature of Case: Wrongful termination, FMLA claim

Electronic Data Involved: Payroll data

Magistrate Judge Orders Parties to Develop a Reasonable Electronic Discovery Plan Addressing Pre-and Post-Production Privilege Review

Nov 30 2005

Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005)

In this putative class action alleging race discrimination, plaintiffs served voluminous discovery requests that clearly identified their interest in discovering electronically stored information. When defendants raised boilerplate and conclusory objections, plaintiffs responded with multiple written communications and ultimately filed a motion to compel. Although an expedited hearing was held, “months had passed from the commencement of discovery while the dispute festered.” Read More

Citing “Unique Burden” of Restoring Email from Backup Tapes and “Special Weight” to be Accorded Non-Party’s Status, Court Grants Motion to Quash Subpoena

Nov 28 2005

United States v. Amerigroup Ill., Inc., 2005 WL 3111972 (N.D. Ill. Oct. 21, 2005)

In this qui tam suit filed under the False Claims Act and the Illinois Whistelblower Act, plaintiff alleged that defendants submitted false or fraudulent claims for payment by omitting certain information from quarterly statements submitted to the Illinois Department of Healthcare and Family Services (“HFS”). Defendants served a subpoena upon HFS seeking, among other things, email from certain employees. HFS moved to quash, and after several conferences with the court, defendants agreed to limit the request to the emails of two individuals currently employed by HFS and one former employee. Defendants also agreed that HFS could limit the search terms to be used in retrieving the desired emails to those set out by the defendants. Unhappy still, HFS maintained that the subpoena must be quashed under Rule 45(c)(3)(A)(iv) because the request was unduly burdensome and the emails were irrelevant and unlikely to lead to the discovery of admissible evidence. Read More

Complete Disclosure

Nov 23 2005

Eversheds litigators Jonathon Crook and Jonathan Tardiff, together with consultant Andrew Szczech, share their thoughts on the potential business implications of electronic discovery following the recent changes to the UK Civil Procedure Rules in the November 23 issue of Legal Week. The article is also linked to from Discovery Resources.

Court Requires Balancing of Need for Evidence with Burden of Discovery Order

Nov 10 2005

Biomet, Inc. v. Fleury, 912 So.2d 706 (Fla. Dist. Ct. App. 2005)

Norman and Karen Fleury filed a products liability and personal injury lawsuit alleging that Mr. Fleury’s Biomet knee prosthesis failed prematurely. The trial court granted a broad discovery order requiring Biomet, Inc. to produce documents related to complaints about its products that contain molded or machined ultra high molecular weight polyethylene intended for insertion into humans. Defendants petitioned for a writ of certiorari to quash the order. Read More

Court Finds that Lucent and Its Attorneys Tried to “Hide the Ball” and Engaged in Sanctionable Conduct

Nov 09 2005

Tantivy Communications, Inc. v. Lucent Techs. Inc., 2005 WL 2860976 (E.D. Tex. Nov. 1, 2005)

Tantivy Communications, Inc. (“Tantivy”) filed a Motion to Exclude in this patent infringement matter, alleging that Lucent Technologies, Inc. (“Lucent”) withheld documents and data, misrepresented the existence of documents and data, allowed the destruction of documents, and produced documents for the first time in an expert report. Read More

Network Access Agreement Evidences Control of Third Party Documents; Defendant Fined $500,000 for Willful Disregard of Discovery Orders

Nov 09 2005

Kamatani v. Benq Corp., 2005 WL 2455825 (E.D. Tex. Oct. 4, 2005)

Yasuo Kamatani and LaserDynamics, Inc. sued Benq Corporation and Benq of America Corporation (collectively “Benq”) for patent infringement in connection with optical disk drive recognition technology. Several discovery disputes developed, and sanctions were issued against Benq on two occasions. A show cause hearing was held in August, 2005 to address allegations of further discovery abuses related to the belated identification of new DVD products and the production of technical documents from third parties. Read More

Court Expands Ediscovery where Defendant’s Sworn Statements that Documents Do Not Exist Appear Erroneous

Nov 01 2005

Tilberg v. Next Mgmt. Co., 2005 WL 2759860 (S.D.N.Y. Oct. 24, 2005)

According to an article in Fashiongates.com, Tasha Tilberg, a Canadian supermodel, sued Next Model Management Company (“Next”) claiming that it had underreported her earnings and “swiped” $150,000. Natalie Tilberg (a/k/a Tasha Tilberg) (“Tilberg”) and Next were to share the cost of having Tilberg’s forensic specialist search Next’s email servers in accordance with an order issued on July 26, 2005 by Magistrate Judge Ellis. Tilberg asserted that the expert was unable to access one of the email servers and found evidence that responsive documents exist despite statements from Next indicating otherwise. Tilberg then asked the Court to order further discovery despite the deadline having passed. Read More