Grange Mutual Cas. Co. v. Mack, 2008 WL 744723 (6^th Cir. Mar. 17, 2008) is one of those rare e-discovery cases that works to the U.S. Court of Appeals.  Unfortunately, the Sixth Circuit did not have too many kind words to say about Defendant Greg Mack's repeated discovery abuses.  "[Defendant's] willful bad faith in thwarting discovery is so obvious that he does not bother contesting the point." 

The defendant appealed a default judgment and award of damages entered in favor of plaintiffs, a group of insurance companies.  In issuing the default, the district court found that the defendant, while subject to a court order to preserve and produce electronic discovery, swapped out his office computers mid-litigation, refused to turn over other computers, and responded to discovery with frivolous objections.  In affirming the district court opinion, the Sixth Circuit noted "[i]t is in cases like this one, where the obstruction prevented the other party from accessing evidence needed to bring the case, that default is most likely to be the appropriate sanction."

In Shamrock Foods Co. v. Gast, (D. Ariz., No. CV-08-0219, Feb. 20, 2008), the court held that an employee's act of forwarding his company emails to his personal email account before resigning to work for a competitor was not an "unauthorized" use of the employer's computer for purposes of the Computer Fraud and Abuse Act.  The court held that since the employee was permitted to access the documents in the first place, his use of the computer was "authorized" regardless of his wrongful intent.

In the continuing saga over White House emails, U.S. Magistrate Judge John Facciola once again told the Bush Administration that he has no time for games.  On Tuesday, Judge Facciola gave the White House three days to give him a good reason why the Bush Administration should not be compelled to create and preserve a forensic copy of  all electronic storage devices that have been used or are being used by any former or current employee who has been employed at any time between March 2003 and October 2005.

In their lawsuits, the National Security Archive and Citizens for Responsibility and Ethics in Washington ("CREW") assert that the emails and electronic records may have been improperly deleted by the White House.  According to CREW, more than 5 million e-mails are missing and thought to have been destroyed.

According to law enforcement officials and published news reports, text messages between an alleged madam and prostitute may have a hand in bringing down "Client 9", an apparent reference to New York Governor Eliot Spitzer.  It appears that Client 9 went out of his way to avoid using electronic communications that could have easily been traced back to him.

Indeed, in a interview with ABC News two years ago, Spitzer, then-attorney general, told ABC News he had some advice for people who break the law. "Never talk when you can nod, and never nod when you can wink, and never write an e-mail because it's death. You're giving prosecutors all the evidence we need," he said.

Instead of a wire transfer, Client 9 allegedly sent thousands of dollars in cash through regular mail without a return address on the envelope.  The money was to cover the escort service and the prostitute's transportation from New York to Washington D.C.  In text messages exchanged between two defendants in the prostitution case, one wrote to the other:

"Pls let me know if [Client-9's] 'package' (believed to be a reference to a deposit of money sent by mail) arrives 2mrw. Appt wd b on Wed."

Text messages were also sent to solidify the planned meeting between Client 9 and the alleged prostitute "Kristen". 

"If D.C. appt. happens u will need 2 leave NYC @ 4:45pm. Is that possible?"

Kristen replied, "yes."

In addition to the text messages, authorities have audio recordings from phone wiretaps between Client 9 and members of the escort service.

Qualcomm, Inc. v. Broadcom Corp.

U.S. District Court, Southern District of California

Senior District Court Judge Rudi Brewster vacated the Magistrate Court's earlier order sanctioning six outside lawyers for Qualcomm, Inc.  In January, Magistrate Court Judge Barbara Major found that Qualcomm and its retained lawyers intentionally and deliberately withheld tens of thousands of decisive documents, including emails, from its opponent in an effort to win the case and gain a strategic business advantage.

In vacating the order and sending the sanctions issue back for further review, Judge Brewster ruled that Qualcomm's retained lawyers should have been able to defend their conduct and should not have been prevented in doing so by the attorney-client privilege.  The court found that the introduction of declarations by Qualcomm employees critical of Qualcomm's retained lawyers' services changed the factual basis underlying Judge Major's earlier denial of the self-defense exception to Qualcomm's attorney-client privilege.

In Petcou v. C.H. Robinson Worldwide, Inc., 2008 WL 542684 (N.D. Ga Feb. 25, 2008), plaintiffs in an employment discrimination case sought discovery of emails from 1998 through 2006 evidencing the presence of pornography on defendant's employees' computers.  The court held that defendant need only produce: (1) undeleted emails sent prior to 2007 by a current employee who had been specifically named by plaintiffs as having explicit materials on their computer and (2) emails with sexual content sent or received by any of plaintiffs' former coworkers. 

The court held that the burden or expense of the proposed discovery as a whole outweighed its likely benefits.  Defendant was not required to search its back-up tapes.  The court also rejected plaintiffs' request for sanctions for defendant's deletion of employee emails in accordance with its normal retention and destruction schedule.  The court noted that the plaintiffs did not request company-wide preservation of emails, nor did they provide defendant with the names of individuals whose e-mails should be preserved.

In Shamrock Foods Co. v. Gast, (D. Ariz., No. CV-08-0219, 2/20/08), the court held that an employee's act of forwarding his company emails to his personal email account before resigning to work for a competitor was not an "unauthorized" use of the employer's computer for purposes of the Computer Fraud and Abuse Act.  The court held that since the employee was permitted to access the documents in the first place, his use of the computer was "authorized" regardless of his wrongful intent.

On February 27, 2008, the Senate unanimously approved a bill that included the new proposed Federal Rules of Evidence, Rule 502.  Under the proposed rule, the disclosure of attorney-client or work product protected materials does not operate as a waiver if the disclosure was made inadvertently.  The party claiming privilege must take reasonable steps to prevent disclosure and take immediate action to rectify the error, including adherence to the provisions set forth in FRCP 26(b)(5)(B).  The House of Representatives has yet to vote on the measure.

For more information go to http://www.govtrack.us/congress/bill.xpd?bill=s110-2450.

Since the 2007 amendments to the FRCP, commentators have been speculating that Rule 34 requires the production of electronically stored information in its "native" format.  Rule 34 states that, in the absence of a specific request, electronic data can be produced as it is ordinarily maintained or in a reasonably usable form.  Recently, Judge Facciola underscored this point in D'Onofrio v. SFX Sports Group, Inc., 2008 U.S. Dist. LEXIS 4252 (D.D.C. Jan. 23, 2008), when he rejected a party's request for native files when the party failed to follow the procedures set forth in the FRCP.