In Wong v. Thomas, 2008 U.S. Dist. LEXIS 71246 (D. N.J. Sept. 10, 2008) (Not for Publication), the court denied plaintiff's motion for sanctions holding that she failed to show electronic documents allegedly destroyed by defendants were relevant to her claims or defenses.

In Meir Babaev v. Grossman, 2008 U.S. Dist. LEXIS 77731 (S.D.N.Y. Sept. 8, 2008), the court ruled that an adverse inference instruction was appropriate for defendants’ refusal to turn over certain banking records and for the disposal of a computer that contained potentially relevant information.

In Metrokane, Inc. v. Build NY, Inc., 2008 U.S. Dist. LEXIS 69272 (S.D.N.Y Sept. 3, 2008), the court awarded a variety of sanctions, including an adverse inference instruction, against plaintiff Metrokane for its failure to preserve and produce emails adverse to its claims and for discovery misconduct in redacting an email which the court called “plainly deliberate and inexcusable.”

In Nursing Home Pension Fund v. Oracle Corp., No. C01-988SI (N.D. Cal. Sept. 2, 2008), U.S. District Court Judge Susan Illston ruled that Oracle intentionally destroyed and withheld emails authored and received by its CEO.  In addition, the ruling slammed Oracle for the deliberate destruction of audio recordings sought as evidence. The class action lawsuit was brought by shareholders who allege the software company made false statements about the company’s business management software and its financial health in quarterly statements filed in 2001.

In Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008), the court ordered the defendant, plaintiff's former employee, to take affirmative steps to obtain copies of relevant emails in his personal Yahoo.com account which he claimed had been deleted by the internet service provider.  The court further ordered the defendant to file a status report advising the court and the plaintiff of his efforts in that regard.

In Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Az. Aug. 29, 2008), the court issued a default judgment against the defendant for his failure to cooperate with plaintiff's request to conduct a forensic examination of his computer hard drive and certain backup media.  According to the court, the defendant repeatedly destroyed evidence central to the factual allegations in the case and admitted that he removed a file-sharing program from his computer and deleted the contents of a shared folder shortly after receiving notice of the lawsuit.

In Reino de Espana v. The American Bureau of Shipping, Inc., 2008 U.S. Dist. LEXIS 62865 (S.D.N.Y. Aug. 18, 2008), the District Court overruled Spain’s objections to sanctions against Spain ordered by Magistrate Judge Ronald Ellis for discovery abuses, including attorneys’ fees and costs incurred by defendants in making their motions to compel.

Presented by the KPMG Global Energy Institute

On behalf of the KPMG Global Energy Institute and Ryley Carlock & Applewhite, you are cordially invited to participate in an audio Webcast designed to discuss the Records Risk Management process for the energy industry. The panel discussion will address the need for a Records Management program that addresses the legal and regulatory retention requirements, litigation hold processes and the ever increasing demands for companies to protect privacy and safeguard information.

Virtually every record is subject to regulatory guidelines or legal requirements whether they be related to retention, security or privacy. The challenge for organizations in the energy industry is to create and implement the right policies, procedures, processes, technology and controls to minimize the risk associated with their records landscape. The paper records management world focused on inventories and box classification; while paper records management is not going away, the digital world brings new complexities to records management. In the electronic and digital world, there exist e-mails, databases, PDFs, optical write once, voice, proprietary applications, and the like. Managing access, versioning, electronic discovery, and retention policies are challenges making records management more difficult and complex.

KPMG's records risk management approach encompasses industry knowledge, legal knowledge, records management, records production, risk management and controls, content management, technology, and organizational issues. Ginger Menown, KPMG Forensic National Energy Leader, will moderate the Webcast that will highlight how KPMG and a third-party subject matter expert approach records risk management. The panel discussion will feature Leslie Banach, KPMG Advisory Director, and Lorrie Luellig, Ryley Carlock & Applewhite, Attorney, whose practice is focused on records compliance.

Register Now !

Global Energy Institute members are invited to register for this important Webcast by clicking the link above. The Webcast will last approximately 60 minutes, including a question and answer period at the conclusion of the discussion. After registering for this event, you will receive details on how to login to the Webcast (or dial-in for audio only participation), as well as any needed presentation materials.

Thank you and we hope you can join us at 12:00 p.m. on September 9.

Future session topics to include:
· Energy Market Manipulation

· International Arbitration

· eDiscovery

About the Global Energy Institute
The KPMG Global Energy Institute has been established to provide an open forum where industry financial executives can share knowledge, gain insights, and access thought leadership about key industry issues and emerging trends.

Court Awards Monetary Sanctions and Recommends Adverse Inference Instruction for “Egregious” Discovery Misconduct 

In Keithley v. The Homestore.com, Inc., 2008 U.S. Dist. LEXIS 61741 (N.D. Cal. Aug. 12, 2008), Magistrate Judge Elizabeth LaPorte sanctioned the defendants for their “egregious” discovery misconduct and recommended the district court give a tailored jury instruction to address the defendants’ spoliation of evidence.  Although the case resolves plaintiffs’ February 2008 motion for sanctions, the issues in the case stem from the court’s December 2006 order that defendants produce (1) source code; (2) early architectural, design and implementation documents; and (3) relevant reports. 

In White v. Graceland College Center for Prof. Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008), U.S. Magistrate Judge David Waxse held that defendants PDF/paper production was inadequate because defendants failed to produce emails in either the form in which they were ordinarily maintained, or in a “reasonably usable form” as required by Federal Rule of Civil Procedure 34(b)(2)(E)(ii).  Plaintiff had sought re-production of certain documents, mainly emails, that were converted to a PDF format and produced in paper.  Plaintiff contended that without the electronic and native copies of the documents, she would be unable to confirm or contradict that the documents were prepared at the time defendants allege they were prepared.