In the latest of several Peskoff v. Faber decisions (No. 04-526, 2008 WL 269506 (D.D.C. 2008)), Magistrate Judge John Facciola ordered the responding party to pay the cost of a forensic examination to recover electronically stored information ("ESI").  Judge Facciola previously addressed the sufficiency of a search done by the responding party for emails and other ESI in response to discovery requests, determining that it was appropriate to ascertain the costs of forensic testing of the computers and server at issue to see if a forensic search was justified.  After the discovery was deemed appropriate, bids were obtained reflecting the costs of the forensic search.  The parties could not agree on who would absorb the costs, so Judge  Facciola stepped in to resolve which party would be responsible for the costs of the forensic examination of the computer.

On Wednesday, a three judge panel of the Ninth Circuit Court of Appeals held that a police officer had a reasonable expectation of privacy in the contents of his text messages (See Quon v. Arch Wireless Operating Co., CV-03-00199, 9th Cir. June 18, 2008). Police officer Jeff Quon filed the action against his employer, City of Ontario, and its pager service provider, Arch Wireless, alleging a violation of his right to privacy and the Stored Communications Act.  The allegations arose from the City's request to Arch Wireless for the text message records related to officers who exceeded the police department's monthly text allotment of 25,000 characters per user.  The City's review of Quon's text messages revealed private and sexually-explicit conversations in violation of departmental policy.

In, Carter Bryant v. Mattel Inc., (Case No. 2:04CV9049 C.D. Cal.), the court decided that the jury would hear testimony that the defendant Carter Bryant used a software program entitled "Evidence Eliminator."   Bryant and his former employer MGA Entertainment are accused of infringing Mattel's copyright for its highly successful Barbie doll line.  Bryant is the creator of the popular Bratz dolls.  Mattel alleges that the concept for the doll came while Bryant worked for Mattel in 2000.  Bryant settled with Mattel, but MGA is contesting the allegations during an ongoing federal jury trial in Riverside, California.

In Victor Stanley, Inc. v. Creative Pipe, Inc., MJG-06-2662 (D. Md. May 29, 2008), the court ruled that defendants had waived the attorney-client privilege to 165 electronically stored documents inadvertently produced by defendants.  Defendants took a two tiered approach to reviewing potentially privileged documents. First, defendants used seventy (70) keyword search terms to conduct a privilege review of electronically stored information ("ESI").  A great majority of the documents (33 of 38 gigabytes) were not in a text-searchable format and, according to defendants, were not searchable by keyword. Second, defendants conducted a limited manual search on the remaining electronic files.

In U.S. v. Graham, 2008 WL 2098044 (S.D.Ohio May 16, 2008), the Court granted defendants' motion to dismiss a criminal indictment on the grounds that their rights under the Speedy Trial Act were violated due to the prosecutor's delay in producing electronic discovery.  The court noted that the case was particularly complex due to an "unprecedented volume of discovery turned over by the government - approximately 1.5 million documents, 300 videotapes, 500 recorded conversations, 90 hard drives of computers and 3,000 diskettes."

Ryley Carlock and Applewhite's Document Control Group is the newest member of the Electronic Discovery Reference Model Project.  EDRM was created to develop resources and best practices for e-discovery consumers and providers.  The group, formed in 2005, created an EDRM working model which outlines the essential processes and key steps involved in e-discovery.  EDRM is currently working on a standard platform to help e-discovery consumers and providers reduce the costs associated with electronic discovery.

"It is certainly a pleasure to welcome Ryley Carlock and Applewhite to EDRM,  We will particularly benefit from the participation of RCA's Document Control Group and their expertise in the area of electronic discovery," said George Socha, Director of the EDRM Project. In joining EDRM, the RCA joins 125 other organizations committed to more efficient and cost effective e-discovery. processes.

In Columbia Pictures v. Bunnell No. 2:06-cv-01093 FMC-JCx., the motion picture studios walked away with a $111 million judgment for copyright infringement against the now defunct file-sharing website TorrentSpy.com.  The judgment, filed this week in the U.S. District Court in Los Angeles, fined the website operator Valence Media, LLC $30,000 per violation for over 3,400 movie and television show downloads.  Valance has reportedly filed for bankruptcy protection in the United Kingdom and is seeking to stay the judgment.

According to published reports, Detroit Mayor Kwame Kilpatrick and his former chief of staff Christine Beatty continue to deny an intimate relationship as more damaging text messages between the two are released to the public.  Many of the emails sent in 2002 and 2003 allegedly provide further evidence that the two discussed their intimate relationship, possible marriage and the forced ouster of a police officer investigating the pair. In a September 2002 message, Beatty wrote, "I have wanted to hold you so badly all day, but I was trying to stay focused on work. So, I promise, not to keep you longer than 15 minutes."  On April 8, 2003, she wrote, "You told me that you would be my boyfriend every day until I was your wife." In another message later that month she calls Kilpatrick an "amazing man" and writes that "everything about you makes me love you."

 In In re Krause, 2008 WL 1805508 (Bkrtcy.D.Kan. April 21, 2008), the bankruptcy court entered judgment in favor of the Government after finding that Gary Krause engaged in a "decades-long scheme" to keep all of his assets out of his own name while enjoying the benefits of those assets, including wiping computer hard drives. Early in the course of discovery, the Government served requests for production of documents on Krause seeking information residing on Krause's computers.  Krause failed to respond and the court issued an order compelling Krause to turnover the actual computers for inspection.  During the inspection, the Government learned that Krause had loaded and operated a wiping software program to permanently destroy or erase electronic information.  The court found that Krause willfully destroyed electronic evidence and assessed sanctions against him, including partial default judgment.  In addition, the judge threatened to hold Krause in contempt if he failed to produce other electronic information in his control.

In Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008), the court rejected defendants' claims that searching through their electronically stored information ("ESI") would be unduly burdensome and produce cumulative results.  Defendants filed a motion for protective order asking the court to shift the costs of defendants' remaining electronic discovery obligation to plaintiff.  The court denied the motion finding that defendants failed to meet and confer in good faith as required by FRCP 26(c).  The court, considering the matter on the merits, further found that defendants did not meet their burden of demonstrating that the requested information was unduly burdensome or cumulative under Rule 26(b)(2)(B).  The court explained, "Defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as ‘inaccessible.'"  Defendants also failed to demonstrate any actual hardship beyond that which ordinarily accompanies the discovery process.