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 Refrains from Issuing Sanctions
Until Fault Determined
In a collection action by the plaintiff, the defendant sought sanctions for the plaintiff's failure to produce and preserve electronic evidence. The defendant argued that the plaintiff failed to produce adequate reasons for the non-production of electronic documents. The plaintiff failed to respond to the allegations of deliberate spoliation. The court ruled that sanctions and default were likely against the plaintiff because it failed to produce any adequate excuse about why electronic evidence wasn't produced or preserved, but the court ruled that it could not issue a default judgment because it was unclear who was at fault for the discovery mishaps. The plaintiff had used several different attorneys throughout the litigation and the plaintiff's counsel may have been to blame for the discovery insufficiencies. The court found that it could not ascertain whether the discovery misconduct was due to willfulness or bad faith on the part of the plaintiff, its counsel, or both, and so set a hearing at which the plaintiff would have an opportunity to show cause why it should not be sanctioned. Exact Software N. Am., Inc. v. Infocon, Inc., 2006 WL 3499992 (N.D. Ohio Dec. 5, 2006).
Citing New FRCP, Court Orders Production
Of Electronic Documents
In a patent-infringement suit, the defendants brought a motion to compel the plaintiff to produce electronic documents. The defendants argued that they were entitled to search all documents created by every employee in the plaintiff's company. The plaintiff responded that it had produced all documents at issue and that a company-wide search would be costly and could not occur before the discovery deadline. The court found that the parties had not come to any agreement regarding the scope of electronic discovery according to the new guidelines set forth in the amended Federal Rules of Civil Procedure (FRCP). As a compromise, the court ordered the plaintiff to produce all electronic documents from 10 individuals of the defendant's choosing. Flexsys Americas, LP v. Kuhmo Tire U.S.A., Inc., 2006 WL 3526794 (N.D. Ohio Dec. 6, 2006).
Court Sets e-Discovery Plan With
Evidence Preservation, Native File Production
In an age- and sex-discrimination dispute, the court entered a stipulated order regarding the discovery of electronically stored information. The order included a mandate that all electronic documents be produced in their native formats, unless otherwise agreed among the parties. The court also established a procedure for the parties to object to the production of any electronic documents, requiring the parties to state reasons why the documents are not accessible, why there would be an undue burden or cost, and whether there is any available information that they were willing to produce. Finally, the court ordered that the parties preserve all electronic evidence. Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006).
Court Denies Motion for e-Mail
Production i n Native File Format
In an employment-termination case, the plaintiffs made a motion to the court for native-file production of e-mails that had been previously produced by the defendant in a hard-copy format. In the original production, spreadsheets had been detached from the e-mails and provided as separate documents in their native electronic format. The plaintiff claimed that without the native e-mail, the plaintiff was forced to match the hard-copy e-mails with the corresponding electronic spreadsheet attachment using a correlation table created by the defendant, which caused the plaintiff to incur more time and cost.
The court reasoned that the prior production of e-mails was not a deliberate attempt by the defendant but the result of an agreement between the parties. The court held that the plaintiffs had failed to give an adequate reason to compel the native e-mail production and denied their motions to produce native e-mails. Williams v. Sprint/United Mgmt. Co., 2006 WL 3691604 (D. Kan. Dec. 12, 2006). See also, Williams v. Sprint/United Mgmt. Co., 2006 WL 1867478 (D. Kan. July 1, 2006).
e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange is a member of e-Discovery Law & Strategy's Board of Editors. She can be reached at [email protected].
Court Refrains from Issuing Sanctions
Until Fault Determined
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.
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.
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.
Warehouse Liability: Know Before You Stow!
As consumers continue to shift purchasing and consumption habits in the aftermath of the pandemic, manufacturers are increasingly reliant on third-party logistics and warehousing to ensure their products timely reach the market.
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.