Litigation

Attorney-Client Privilege in Work E-Mails

Posted on November 10, 2009
By Anthony E. Davis New York Law Journal November 5, 2009 There are now several decisions determining whether employees can retain attorney-client privilege for e-mails sent to their lawyers using their employer-provided e-mail addresses and computers -- reaching apparently inconsistent conclusions...

"Roadmap for Reform" Reports Provide Rules and Guidelines for Pilot Programs Aimed at Addressing Problems of Civil Justice System

Posted on November 04, 2009
In two reports released yesterday, the Institute for the Advancement of the American Legal System at the University of Denver and the American College of Trial Lawyers, set forth rules and guidelines to be utilized by jurisdictions in the creation and implementation of pilot programs aimed at addressing the problems identified by the two groups in their Final Report on the Joint Project of the American College of Trial Lawyers Task Force and the Institute for the Advancement of the American Legal System ('Final Report') earlier this year...

Supreme Court of Arizona holds Metadata is Subject to Public Records Requests

Posted on October 30, 2009
Lake v. City of Phoenix, No. CV-09-0036-PR (Ariz. Oct. 29, 2009) In an en banc opinion, the Supreme Court of Arizona vacated (in part) an opinion from the Court of Appeals and held that 'if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws...

Sedona Continues Call for Cooperation

Posted on October 30, 2009
By Jennifer H. Rearden and Farrah Pepper New York Law Journal October 29, 2009 It turns out that Jean-Paul Sartre's famous pronouncement that "hell is other people" was overly broad.  Other people per se are not the problem, but rather other lawyers -- and uncooperative ones at that...

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Court Imposes Strict Sanctions for Loss of Video Resulting from City's Reckless Failure to Ensure Preservation

Posted on October 29, 2009
Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009) In this case arising from defendant's claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city's failure to preserve the video of the arrest that was recorded by a camera in one of the officer's cars...

Court Denies Motion to Compel Sequestration and Forensic Examination of City's Computers and Storage Devices, Directs Parties to Cooperate to Develop a "Meaningful Discovery Plan"

Posted on October 28, 2009
Mirbeau Geneva Lake, LLC v. City of Lake Geneva, 2009 3347101 (E.D. Wis. Oct. 15, 2009) In this litigation over the attempted development of land in the City of Lake Geneva, plaintiff sought to compel production of all of defendants' 'computers and other electronic storage devices' for forensic examination...

Upcoming Events - November

Posted on October 28, 2009
National Business Institute: Keeping Up with E-Discovery – Live Seminar November 18, 2009 Washington State Convention and Trade Center 800 Convention Place Seattle, WA K&L Gates partner Todd Nunn will present 'The Amendments to the Federal Rules of Civil Procedure and Recent Case Law' addressing attorneys' obligations under the rules and recent decisions that effect those obligations...

Thompson Reuters' 13th Annual Electronic Discovery and Records Retention Conference

Posted on October 28, 2009
November 5-6, 2009 Hotel Sax Chicago 333 N. Dearborn St. Chicago IL 60654 K&L Gates partner David R. Cohen will participate in a panel discussion, 'Retrospective Analysis of Critical Cases and How to Manage Your Risk' on November 5th at 10:15 AM.  At this discussion, participants will hear about the most relevant cases in this industry and learn how to avoid common pitfalls...

Indiana Supreme Court Rules Trial Court Properly Admitted Evidence of Defendant's MySpace Page in Murder Trial

Posted on October 23, 2009
Clark v. State, 915 N.E.2d 126 (2009) Defendant Ian J. Clark was found guilty of murdering a two year old girl left in his care and was sentenced to life in prison without parole.  On appeal, Clark argued that the trial court improperly admitted evidence from his MySpace account in violation of Ind...

Records Management, Privacy and e-Discovery Workshop: Achieving sensible solutions for records management, risk reduction and litigation readiness

Posted on October 21, 2009
Featuring K&L Gates Partners, David R. Cohen and Dominic Bray, along with the Director of EMEA IM Marketing for HP Software, Erik Moller, this workshop addresses a myriad of issues including the risks and complexity of e-discovery and how to minimize those risks while maximizing cost savings and auxiliary benefits, European Privacy and Data Protection issues, and recommendations for best practices and solutions planning for data management, privacy and disclosure...

Pa. Court Weighs In on E-Discovery

Posted on October 19, 2009
By Peter Hall Pennsylvania Law Weekly October 19, 2009 An electronic discovery request in a dispute over the authenticity of a classic car has prompted a rare opinion from a Pennsylvania court on the emerging issues surrounding the discovery of electronically stored files by litigants in a civil case...

Finding Emails "Not Reasonably Accessible" Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms

Posted on October 16, 2009
Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009) During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties' respective requests for production...

Seventh Circuit Initiates e-Discovery Pilot Program Beginning October 1, 2009

Posted on September 30, 2009
Beginning October 1st, Phase One of the Seventh Circuit's new Electronic Discovery Pilot Program ('Pilot Program') will begin.  The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers...

Upcoming Events - October

Posted on September 24, 2009
IQPC: Information Retention & E-Disclosure Management, Europe September 30 – October 1, 2009 Marriott Hotel Auguste Orts 3-7/Grand Place 1000 Brussels, Belgium K&L Gates partner David Cohen will present 'Turning Theory Into Practice: Practical Steps to Take NOW to Reduce E-Disclosure/E-Discovery Risks and Costs' on Wednesday, September 30th at 11:00 AM...

Failure to Timely "Re-Assess its Procedures and Re-Check its Production" upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents

Posted on September 24, 2009
U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009) Defendant moved to compel the production of 214 inadvertently produced documents.  Plaintiff objected, arguing that the parties' discovery agreement precluded the waiver of privilege as to inadvertently produced documents...

Ex-Fund Manager Seeks to Block Evidence on E-mail Account

Posted on September 23, 2009
The Wall Street Journal , Sep. 21, 2009 By Chad Bray NEW YORK -- Lawyers for former Bear Stearns fund manager Matthew Tannin have asked a judge to prohibit prosecutors from introducing evidence at his criminal trial regarding the erasure of his personal email account in 2008, calling it an "eleventh-hour smear...

State E-Discovery Rulemaking after the 2006 Federal Amendments: An Update

Posted on September 17, 2009
Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information.  Recently, Thomas Allman, a recognized authority on electronic discovery, gave permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country...

Court Orders Adverse Inference for Spoliation of Data on Handheld Devices

Posted on September 16, 2009
Southeastern Mechanical Services, Inc. v. Brody, 2009 WL 2883057 (M.D. Fla. Aug. 31, 2009) Plaintiff Southeastern Mechanical Services, Inc. ('SMS') moved for spoliation sanctions alleging that defendants, including individual defendants Smith, Sherouse and Brody, spoliated data by deleting it from their BlackBerries and laptops...

California Judicial Council Amends Rules of Court, Establishes Duty to Meet and Confer regarding Electronic Discovery

Posted on September 10, 2009
On August 14, 2009 the Judicial Council adopted amendments to California's Rules of Court, including amendments to Rule 3.724, which now requires consideration of issues concerning the discovery of electronically stored information when the parties 'meet and confer' prior to the initial case management conference...

Texas Supreme Court Finds Abuse of Discretion in Grant of Access to Defendant's Computers, Summarizes Proper Procedure under Tex. R. Civ. P. 196.4

Posted on September 08, 2009
In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009) In this mandamus proceeding, the Supreme Court of Texas found that the trial court abused its discretion by ordering four of defendant's employees to turn over their computer hard drives for forensic examination...

Upcoming Events - September 2009

Posted on August 28, 2009
What You Need to Know About Records Management September 2, 2009 Podcast hosted by Karl Schieneman 9:00 AM EDT K&L Gates Partner Thomas J. Smith will speak on the topic of what every company should know about records management. Click here to learn more...

9th Circuit Sets Doctrine for Electronic Searches, Finds Steroids Case Search Unlawful

Posted on August 27, 2009
Law.com, August 27, 2009 By Dan Levine The Justice Department's aggressive steroids probe has led the 9th U.S. Circuit Court of Appeals to enunciate a new set of Fourth Amendment protections for the digital age. In an en banc opinion Wednesday that split conservatives on the court, Chief Judge Alex Kozinski said federal agents were wrong to seize swaths of drug test results from labs in Nevada and California...

Holistic Privilege Protection: Protecting Privilege by Taking "Reasonable Steps" Throughout the Process of Production

Posted on August 26, 2009
By K&L Gates partner Todd Nunn. This article appears in the summer edition of DRI's E-Discovery Connection, and begins: There are now rules specifically designed to protect the attorney-client privilege during document production:  Federal Rule of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502...

Court Orders Monetary Sanction for Failure to Preserve to be Paid by Defendant and Counsel

Posted on August 25, 2009
Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) Upon one of the defendant's revelation that she had lost all original versions of electronic files when she transferred those files to CD and then reinstalled her operating system, plaintiff filed a motion for sanctions...

Court Articulates Analysis Under FRE 502, Finds No Waiver of Inadvertently Produced Email

Posted on August 21, 2009
Coburn Group, LLC v. Whitecap Advisors, LLC, 2009 WL 2424079 (N.D. Ill. Aug. 7, 2009) In this case, defendant, Whitecap Advisors LLC ('Whitecap'), sought to compel the return of one privileged email and to strike deposition testimony regarding the same...

For Discovery Violations, Court Sanctions Plaintiff and Counsel... Again

Posted on August 21, 2009
Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009) In this case, plaintiff Bray & Gillespie Management, LLC ('B&G') sought to recover payment for, among other things, business interruption losses allegedly suffered as the result of damage from Hurricane Jeanne in 2004...

No Sanctions for Failure to Preserve Links to Graphics in Emails Where Plaintiff Failed to Establish Bad Faith or How the Images were Relevant or Necessary to His Claims

Posted on August 12, 2009
Ferron v. Echostar Satellite, LLC, 2009 WL 2370623 (S.D. Ohio July 30, 2009) Plaintiff's 1300-page complaint alleged numerous violations of the Ohio Consumer Sales Practice Act against multiple defendants for sending email messages which conveyed a commercial advertisement and displayed the name and/or logo of 'Dish Network...

Third Parties Held in Contempt for Failure to Obey Court Order, Including Using Computer Following Instructions that "They May Not Touch the Computers Except to Turn Them Off" Prior To Production

Posted on August 11, 2009
Sonomedica, Inc. v. Mohler, 2009 WL 2371507 (E.D. Va. July 28, 2009) In this case, the court adopted the recommendation of the magistrate judge and found third parties in contempt for violation of the court's orders, including the spoliation of electronically stored information on hard drives they were ordered to produce, and ordered them to pay plaintiff's attorney's fees and costs in the amount of $108,212...

Court Denies Motion for Sanctions for Failure to Suspend Automatic Overwriting of Backup Tapes Absent Showing of Bad Faith

Posted on August 07, 2009
Southeastern Mech. Servs., Inc. v. Brody, 2009 WL 2242395 (M.D. Fla. July 24, 2009) Defendant Thermal Engineering Construction Services, Inc. ('TEI') moved for spoliation sanctions alleging that plaintiff failed to adopt a proper litigation hold procedure which resulted in the automatic deletion of email and other electronically stored information ('ESI') from plaintiff's backup tapes...

Finding Defendant "May Have" Caused the Deletion of "Possibly Relevant Emails," Court Orders Sanctions, Including Payment to Local Bar Association

Posted on August 06, 2009
Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009) In this case, defendant Manpower, Inc. ('Manpower') failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers...

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