Electronic Discovery Law – Page 431 – Legal issues, news and best practices relating to the discovery of electronically stored information.

Report from the First Public Hearing on Proposed Changes to the Federal Rules of Civil Procedure Addressing E-Discovery

Jan 13 2005

The first of three scheduled public hearings regarding proposed changes to the FRCP addressing electronic discovery took place in San Francisco January 12, 2005. Fifteen members of the legal community took advantage of the opportunity to publicly voice their views of the proposed amendments.

The diverse group included in-house counsel from corporations such as Microsoft and Intel, private practitioners – including both plaintiff and defense attorneys, and a computer forensic specialist. Participants commented on what they saw as the pros and cons of a series of proposed amendments to the FRCP designed to provide additional guidance to the courts and litigants engaged in the ever-growing area of e-discovery.

Defendant’s Use of “Evidence Eliminator” Software Warrants Adverse Inference

Jan 13 2005

DirecTV, Inc. v. Borow, 2005 WL 43261 (N.D.Ill. Jan. 6, 2005)

In this case, the court granted summary judgment in favor of plaintiff DirecTV and against defendant Randy Borow on claims stemming from Borow’s unauthorized use of plaintiff’s satellite television signal. Summary judgment was warranted, in part, because defendant had not offered sufficient evidence to rebut the presumption that arose from his destruction of relevant evidence.

Magistrate Recommends Default Judgment Against “Big Four” Accounting Firm for Electronic Discovery Abuses

Jan 12 2005

In re Telxon Corp. Securities Litigation, 2004 WL 3192729 (N.D.Ohio July 16, 2004)

Recommending that default judgment on liability be entered against third party defendant, PricewaterhouseCoopers, LLP, the judge stated “it would be difficult for anyone to argue that PWC’s conduct over the course of the litigation, particularly its repeated assurances to the court and to the parties that it had fully disclosed all relevant information, was not due to willfulness, bad faith or fault.” The judge criticized PWC for, among other things: failing at the start of discovery to check thoroughly its local servers and its archives for relevant documents, failing to produce documents as they were kept in the ordinary course of business, failing to reproduce thoroughly and accurately all documents and their attachments, and, prior to litigation, permitting the destruction of documents despite committing to their preservation. The court stated the only conclusion it can reach “is that PWC and/or its counsel engaged in deliberate fraud or was so recklessly indifferent to their responsibilities as a party to litigation that they failed to take the most basic steps to fulfill those responsibilities.”

Court Upholds $2,442,440.97 in Discovery Abuse Sanctions

Jan 10 2005

Nartron Corp. v. General Motors Corp., 2005 WL 26991 (Mich. Ct. App. Jan. 6, 2005) (unpublished)

In a prior appeal, the court affirmed the trial judge’s order granting summary judgment dismissing plaintiff’s breach of contract claim and dismissing with prejudice plaintiff’s remaining claims as a sanction for discovery abuses. See Nartron Corp. v. Gen. Motors Corp., 2003 WL 1985261 (Mich. Ct. App. Apr. 29, 2003) (unpublished). Thereafter, the trial court entered judgment ordering plaintiff to pay costs and sanctions in the amount of $2,442,440.97, representing $1,912,630.66 in attorneys’ fees, $159,542.10 in legal assistant fees, $361,641.71 in expert witness fees, and additional costs for the special discovery master. The trial court further ordered plaintiff to pay prejudgment interest in the amount of $1,708,515.77, for a total judgment of $4,150,956.24.

Summary Judgment for Defendants Ends Rowe Entm’t, Inc.

Jan 10 2005

Rowe Entm’t, Inc. v. The William Morris Agency, Inc., 2005 WL 22833 (S.D.N.Y. Jan. 5, 2005)

The court recently granted summary judgment for the defendants in this seminal E-discovery cost-shifting case, having concluded that plaintiffs “raised no genuine issue of material fact and that no rational trier of fact could find for plaintiffs on any of the myriad of claims made in this action.” Plaintiffs were concert promoters who claimed that booking agencies and other promoters had engaged in discriminatory and anti-competitive practices.

Microsoft Corporation Comments on Proposed Amendments to the Federal Rules of Civil Procedure

Jan 07 2005

Microsoft Vice President & Deputy General Counsel Tom Burt recently submitted comments and a visual diagram to the Committee on Rules of Practice and Procedure, which is currently accepting public comment regarding the proposed amendments to the Federal Rules of Civil Procedure addressing electronic discovery. Gregory S. McCurdy, Senior Attorney at Microsoft, will also be testifying before the Advisory Committee on January 12, 2005, in San Francisco at the first of three public hearings. Subsequent hearings are being held in Dallas, Texas, on January 28, 2005, and in Washington, D.C., on February 11, 2005.

Written Comments to the Federal Civil Rules Available Online

Jan 06 2005

Written comments to the proposed Federal Civil Rules amendments relating to electronic discovery have been posted on the U.S. Courts website.

Ten Tips For Electronic Discovery: Judge Shira A. Scheindlin Speaks On Proposed Rules Changes And Surviving E-Discovery Without Sanctions

Jan 06 2005

The rules of civil procedure are once again being amended, this time to update them for document production in the digital age. Judge Shira A. Scheindlin talks about what the proposed changes will mean for in-house counsel. She also gives advice and her top ten tips on conducting e-discovery in the current murky shadow of Rule 26, to avoid garnering sanctions for inadvertently violating a discovery order, or worse yet charges of spoliation of evidence. [Subscription to the ACC Docket required.]

Taking The Fear Factor Out Of E-Mail

Dec 27 2004

BusinessWeek Online, December 20, 2004

Tort reform is a hot topic again. Taking advantage of the most favorable political climate in years, business lobbyists are pushing for new federal laws that would mop up the asbestos mess, cap medical malpractice damages, and help companies steer class actions out of hostile state courts.

But there’s another legal reform campaign that has attracted much less attention — yet could be more significant than any of these measures. It is Corporate America’s effort to get the Judicial Conference of the U.S. (JCU), the obscure group that makes the rules governing lawsuits, to enact special new procedures for electronic evidence. This broad category of digital information includes spreadsheets, databases, memos, letters, PowerPoint presentations — and most important, the e-mail messages that have recently plagued so many companies in court. Read the entire article at BusinessWeek Online.

Electronic Records Open Up Fertile Legal Research Field

Dec 27 2004

By Tricia Bishop, The Baltimore Sun
December 27, 2004

Brian L. Moffet said he saw the writing on the wall about three years ago. The attorney was arguing a national class- action suit with 50,000 pieces of paper entered into evidence when the judge asked, “Where are the e-mails?”

That sent Moffet into scramble mode.

“It was the first time I realized it was something that was going to have to be addressed,” recalled the lawyer with Gordon, Feinblatt, Rothman, Hoffberger & Hollander of Baltimore.

Read the entire article posted on latimes.com. [Subscription required.]