Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
e-Discovery Docket Sheet
Court Orders Defendants To Produce
Redacted Copies Of Privileged e-Mails
The defendants filed a motion for reconsideration of the court's earlier ruling relating to the production of nine e-mail messages for which they had asserted the attorney work-product privilege. Pursuant to the Freedom of Information Act (FOIA), the court had previously required the defendants to provide the plaintiff with redacted copies of the privileged e-mails. In a motion for reconsideration, the defendants argued that the FOIA segregability requirement ' mandating production of “any reasonably segregable portion of a record” ' did not apply and, as a result, the e-mails did not need to be produced. The court rejected this argument, holding that the FOIA segregability requirement applies to all documents, including e-mails. Emphasizing that the defendants made no effort to separate factual and privileged material, the court denied the defendants' motion and ordered production of the redacted copies. Judicial Watch, Inc. v. United States Dep't. of Justice, 2004 WL 2254944 (D.D.C. Oct. 7, 2004).
Court Sanctions For Not Producing e-Mail,
e-Evidence Spoliation
In a case involving a patent-infringement claim, the plaintiff moved for discovery sanctions, alleging the defendants failed to preserve and disclose discoverable e-mail evidence. Challenging the plaintiff's motion, the defendants pointed out that their own discovery request expressly included e-mails and claimed the plaintiff did not specifically include e-mail in its definition of “document” during discovery. The defendants also argued that the plaintiff did not demonstrate it was prejudiced as a result of not receiving the e-mails. The court rejected the defendants' arguments, stating that the defendants “knew, or should have known, those e-mails were discoverable, given their heavy reliance on e-mails obtained from plaintiff during discovery, not to mention the obvious realities of modern litigation … the fact that no technical e-mails were preserved … demonstrates, at the least, extremely reckless behavior.” In an order following the July opinion, the judge issued $566,838 in sanctions against the defendants as well as an adverse-inference instruction for spoliation of e-mail evidence. Mosaid Techs. Inc. v. Samsung Elecs. Co., No. 01-CV-4340 (WJM) (D.N.J. Sept. 1, 2004).
e-Mail Evidence Supports
Investment Fraud Claim
In a class-action suit involving investment-fraud accusations, the plaintiffs argued that the defendants committed fraud by disseminating research reports they knew were overly optimistic. The defendants filed a motion to dismiss for failure to state a claim, arguing the plaintiffs did not allege a “specific false or misleading statement or omission” by the company analyst or the company manager. In support of their claims, the plaintiffs produced e-mail messages from the company analyst to the company manager relating to the fraudulent reports. In reference to the stock, one of the e-mails stated, “I think there is a risk of bankruptcy … best case is dead money.” Based on this e-mail evidence, the court determined that the plaintiffs' complaint properly raised an issue in reference to false statements made by the company analyst. However, the court determined no such showing existed concerning the company's manager, whose name was not on the misleading research reports and who had only received the e-mails. Swack v. Credit Suisse First Boston, 2004 WL 2203482 (D.Mass. Sept. 21, 2004).
Defendant Avoids Contempt Sanctions For
Unauthorized Proprietary Data Analysis
In a copyright-infringement suit, the plaintiff filed a contempt motion against the defendants for violating a preliminary injunction and protective order. In response, the defendants also moved for a contempt motion and sought to affirm an arbitration award in their favor. In reference to the protective order, the defendants represented they would cease using and destroy all copies of the plaintiff's proprietary software. Defense counsel asserted that it would keep backup tapes and forensic copies of the software in a temperature-controlled, secure facility. Despite the order, however, the defendants continued to use the software and inadvertently produced a document to the plaintiff detailing their analysis of the database schema of the software. The defendants also restored seven or eight backup forensic copies of the software to use during its unauthorized analysis. The court noted that the protective order did not specifically address the defendants' conduct because the defendants had represented such prohibition would be unnecessary. The court stated that the defendant “thus created a loophole, and then covertly took advantage of it.” The court held “with considerable reluctance” that the protective order was not clear enough to warrant enforcement by contempt and declined to hold either party in contempt. Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2004 WL 2168630 (N.D.Tex. Sept. 26, 2004).
Michele C.S. Lange Charity Delich E-Discovery Case Law Update Computer Forensics www.krollontrack.com e-Discovery Law & Strategy [email protected]
Court Orders Defendants To Produce
Redacted Copies Of Privileged e-Mails
The defendants filed a motion for reconsideration of the court's earlier ruling relating to the production of nine e-mail messages for which they had asserted the attorney work-product privilege. Pursuant to the Freedom of Information Act (FOIA), the court had previously required the defendants to provide the plaintiff with redacted copies of the privileged e-mails. In a motion for reconsideration, the defendants argued that the FOIA segregability requirement ' mandating production of “any reasonably segregable portion of a record” ' did not apply and, as a result, the e-mails did not need to be produced. The court rejected this argument, holding that the FOIA segregability requirement applies to all documents, including e-mails. Emphasizing that the defendants made no effort to separate factual and privileged material, the court denied the defendants' motion and ordered production of the redacted copies. Judicial Watch, Inc. v. United States Dep't. of Justice, 2004 WL 2254944 (D.D.C. Oct. 7, 2004).
Court Sanctions For Not Producing e-Mail,
e-Evidence Spoliation
In a case involving a patent-infringement claim, the plaintiff moved for discovery sanctions, alleging the defendants failed to preserve and disclose discoverable e-mail evidence. Challenging the plaintiff's motion, the defendants pointed out that their own discovery request expressly included e-mails and claimed the plaintiff did not specifically include e-mail in its definition of “document” during discovery. The defendants also argued that the plaintiff did not demonstrate it was prejudiced as a result of not receiving the e-mails. The court rejected the defendants' arguments, stating that the defendants “knew, or should have known, those e-mails were discoverable, given their heavy reliance on e-mails obtained from plaintiff during discovery, not to mention the obvious realities of modern litigation … the fact that no technical e-mails were preserved … demonstrates, at the least, extremely reckless behavior.” In an order following the July opinion, the judge issued $566,838 in sanctions against the defendants as well as an adverse-inference instruction for spoliation of e-mail evidence. Mosaid Techs. Inc. v. Samsung Elecs. Co., No. 01-CV-4340 (WJM) (D.N.J. Sept. 1, 2004).
e-Mail Evidence Supports
Investment Fraud Claim
In a class-action suit involving investment-fraud accusations, the plaintiffs argued that the defendants committed fraud by disseminating research reports they knew were overly optimistic. The defendants filed a motion to dismiss for failure to state a claim, arguing the plaintiffs did not allege a “specific false or misleading statement or omission” by the company analyst or the company manager. In support of their claims, the plaintiffs produced e-mail messages from the company analyst to the company manager relating to the fraudulent reports. In reference to the stock, one of the e-mails stated, “I think there is a risk of bankruptcy … best case is dead money.” Based on this e-mail evidence, the court determined that the plaintiffs' complaint properly raised an issue in reference to false statements made by the company analyst. However, the court determined no such showing existed concerning the company's manager, whose name was not on the misleading research reports and who had only received the e-mails. Swack v. Credit Suisse First Boston, 2004 WL 2203482 (D.Mass. Sept. 21, 2004).
Defendant Avoids Contempt Sanctions For
Unauthorized Proprietary Data Analysis
In a copyright-infringement suit, the plaintiff filed a contempt motion against the defendants for violating a preliminary injunction and protective order. In response, the defendants also moved for a contempt motion and sought to affirm an arbitration award in their favor. In reference to the protective order, the defendants represented they would cease using and destroy all copies of the plaintiff's proprietary software. Defense counsel asserted that it would keep backup tapes and forensic copies of the software in a temperature-controlled, secure facility. Despite the order, however, the defendants continued to use the software and inadvertently produced a document to the plaintiff detailing their analysis of the database schema of the software. The defendants also restored seven or eight backup forensic copies of the software to use during its unauthorized analysis. The court noted that the protective order did not specifically address the defendants' conduct because the defendants had represented such prohibition would be unnecessary. The court stated that the defendant “thus created a loophole, and then covertly took advantage of it.” The court held “with considerable reluctance” that the protective order was not clear enough to warrant enforcement by contempt and declined to hold either party in contempt. Positive Software Solutions, Inc. v. New Century Mortgage Corp., 2004 WL 2168630 (N.D.Tex. Sept. 26, 2004).
Michele C.S. Lange Charity Delich E-Discovery Case Law Update Computer Forensics www.krollontrack.com e-Discovery Law & Strategy [email protected]
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Removing Restrictive Covenants In New York
In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.