Authored By: James B. Damiano

Citation: Datel Holdings Ltd. v. Microsoft Corp., No. C-09-05535, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011).

Employee/Employer Implicated: In-House and Outside Counsel, Contract Lawyers

e-Lesson Learned: Production of privileged emails resulting from a vendor’s software glitch was inadvertent and does not waive privilege.

Tweet This: Software Glitch Does Not Waive Privilege

In Datel Holdings Ltd. v. Microsoft Corp., the court was faced with a Motion by the Plaintiff to Compel the production of several document’s inadvertently produced by the Defendant and admitted into evidence at a deposition, that the Defendant now claims are protected by the attorney-client privilege. In this case, the Defendant produced several abbreviated versions of an email chain that did not contain the initial email message from in-house counsel to a non-lawyer program manager, although the following reply emails were entirely among non-lawyers, and discussed the results of computer testing and did not transmit legal advice.

Authored By: Lauren Winchester

Citation: Estate of Carlock v. Williamson, No. 08-CV-3075, 2011 U.S. Dist. LEXIS 7596 (C.D. Ill. Jan. 26, 2011).

Employee/Employer Implicated: Counsel

e-Lesson Learned: Although the right to public access of court proceedings is important, when documents that should have been protected by the attorney client privilege are inadvertently disclosed in discovery and then sealed, the press is not able to assert that right and intervene.

Tweet This: District Court Denies Press Group’s Motion to Intervene under Rule 24(b) Because Sealed Documents were Inadvertent Disclosures.

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

Authored By: Catherine Kiernan

Citation: Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)

Employee/Employer Implicated: Company executives, in-house counsel, independent agents, document custodians

e-Lesson Learned: The definition of “possession, custody, or control” under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations.

Tweet This: Court's broad definition of "control" requires that litigation hold include independent agents

For discovery purposes, “control” over documents does not necessarily require actual physical possession.  In fact, certain agency contracts can designate that a company has “control” over documents held by its independent agents.  In Haskins v. First American Title Insurance Company, the United States District Court for the District of New Jersey held that First American Title Insurance (defendant) had to assert a litigation hold on its present and former independent title agents.

Authored By: S.A.A.

Citation: Patel v. Havanna Bar, Restaurant, and Catering, 2011 WL 6029983 (E.D.Pa. Dec. 5, 2011)

Employee/Employer Implicated: Counsel, Client, Judge

e-Lesson Learned: The Court has broad discretion in determining the type of sanction that is appropriate in cases of spoliation, including the possibility of an adverse inference that non-production of evidence was due to a fear of harm that the evidence could cause, thus counsel should be especially cautious in preserving materials necessary for litigation.

Tweet This: Failure to Preserve Footage and Non-Disclosure of Facebook Information May Lead to Adverse Inferences for Both Parties

The District Court judge ruled that an adverse inference was warranted for allegations of discovery abuse pertaining to messages sent on Facebook.  In Patel v. Havana Bar, Judge Goldberg ordered both Plaintiff Patel and Defendant Havana Bar to incur sanctions for spoliation for the former’s failure to produce statements given in response to a Facebook message about the Plaintiff’s case and for the latter’s failure to preserve video footage of the incident in question.

Authored By: Jennifer A. Connelly

Citation: Offenback v. L.M. Bowman, Inc., 2011 WL 2491371 (M.D. Pa. June 22, 2011)

Employee/Employer Implicated: Parties to suits that use social media sites

e-Lesson Learned: Materials posted to social media sites, such as facebook or myspace, are discoverable to the extent that they are relevant to the claim(s) presented. Plaintiffs should be able to determine what materials posted to social media sites are relevant to the Defendant’s discovery requests and produce accordingly.

Tweet This: Social media is discoverable, but Plaintiffs will get to produce it

Defendants in an automobile accident case sought discovery of Plaintiff’s facebook and myspace (i.e., social media) account information. Plaintiff was seeking damages based upon the physical limitations caused by the injuries sustained in the accident and for psychological damages caused by his newfound anxiety to travel and traffic as well as depression. Plaintiff conceded that the “public information,” or information available to all users/nonusers or friends/nonfriends should be discoverable pursuant to Federal Rule of Civil Procedure Rule 26 provided it was relevant. The Offenback Court conducted an in camera review of Plaintiff’s facebook page to determine the relevancy and discoverability of the material.[1]

Authored By: Mark Keddis

Citation: Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10, No. C 12-0240 MEJ, 2012 U.S. Dist. LEXIS 8371 (N.D. Cal. Jan. 25, 2012)

Employee/Employer Implicated: Counsel for the 2012 presidential campaign committee of U.S. representative Ron Paul and anonymous internet users

e-Lesson Learned: Anonymous internet users and presidential campaign committees are on equal procedural footing when an ex parte expedited discovery request is filed, but courts will allow re-filing if the original request does not meet the legal standards and proper evidentiary support to show that the administration of justice outweighs the prejudice to the other party.

Tweet This: California Court Protects Identifies of Anonymous Internet Users But is Lenient with Re-filing of Expedited Discovery Request

Many individuals believe that matters pertaining to the United States Presidential Election are paramount to all other considerations.  This, however, is not always the case and even those who create problems for campaign committees from behind the guise of internet anonymity are entitled to equal rights under the judicial system.   Ex parte applications for expedited discovery are no exception according to the recent ruling in Ron Paul 2012 Pres. Campaign Comm., Inc. v. John Does, 1–10 because courts have a set list of criteria to consider when assessing the existence of “good cause” for expedited discovery to identify internet users.

Authored By: Chris Borchert

Tweet This: Delaware Court of Chancery Issues Updated eDiscovery Guidelines

The Delaware Court of Chancery is amending its Rules 26, 30, 34, and 45 in order to update provisions relating to the retention and discovery of electronically stored information. The Court is also expanding its "Guidelines for Practitioners" to include "Discovery Guidelines," which set out the Court's expectations with regard to eDiscovery best practices.

Authored By: Matthew S. Adams

Through his roles in both the United States military and CIA, General David Petraeus was a real life version of the captivating fictional characters that have been the protagonists in successful television shows and movies like 24, Homeland, and the 007 franchise.  General Petraeus was about as powerful as powerful can get. 

Authored By: Michael Chew

Employee/Employer Implicated: Counsel for Megaupload

e-Lesson Learned: This case poses a novel legal issue resulting from a conflict in DMCA provisions and Megaupload’s litigation hold obligation.

Tweet This: Megaupload’s Legal Quandary

Almost a year after prolific founder of Megaupload, Kim Dotcom, was arrested and the site’s domain seized, recently disclosed court documents have illuminated the underlying legal complexity of the copyright infringement case.

Authored By: Suzanne Janusz

Citation: Ngai v. Old Navy, No. 07-5653 (KSH)(PS), 2009 WL 2391282, (D.N.J. July 31, 2009).

Employee/Employer Implicated: Outside Counsel, Deponent Liability Claims Manager

e-Lesson Learned: An attorney’s communications with a client via text message during a deposition are not privileged according to Federal Rule of Civil Procedure 30 as an attempt to interfere with the fact finding of the proceeding.

Tweet This: Under Rule 30, Secret Text Messages to Client during Deposition Are Not Privileged

As text messages have become an increasingly common way for people to casually communicate, they are also being used as a method for attorneys to communicate legal advice to their clients.  However, the line must be drawn when attorneys try to use text messaging to communicate to their clients in secret during a court proceeding or deposition.