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.

On February 20, 2008, attorneys for Qualcomm filed Qualcomm's reply to Broadcom Corporation's Response to Objections of Responding Attorneys to Sanctions Order of Magistrate Judge.  In the short reply, Qualcomm acknowledged a payment of the sanctions award to Broadcom in the full amount of $8,568,633.24.

In United States v. O'Keefe, 2008 WL 449729 (D. D.C. Feb. 18, 2008), Magistrate Judge John Facciola, held that Rule 34 of the Federal Rules of Civil Procedure can be used in the criminal context to evaluate whether the government produced electronic documents in an appropriate format.  Judge Facciola also opined that evidence related to search term methodology is "clearly beyond the ken of a layman" and requires expert testimony under Federal Rules of Evidence, Rule 702.  Under FRE 702, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may, upon satisfactory qualification,  testify in the form of an opinion.

Football season may be over, but the early season "spygate" scandal involving the New England Patriots and Coach Bill Belichick's illegal videotaping of the New York Jets' defensive play-calling signals may just be getting started.  Senator Arlen Spector is looking into the possibility of congressional hearings over the NFL's destruction of videotaped evidence of the Patriot's wrongdoing.  Belichick and the Patriots drew fire and a record fine from the NFL which included $750,000 and the forfeiture of a top draft choice. 

Prior to this year's Super Bowl contest between the Patriots and the New York Giants, NFL officials demanded and received the purported videotapes taken by the Patriots of their opponents over the past several years.  After reviewing the tapes, the NFL destroyed them.  In a letter dated January 31, 2008, NFL Commissioner Roger Goodell acknowledged destruction of the tapes to "ensure that the Patriots would not secure any competitive advantage as a result of the misconduct that had been identified."

This must have been news for lawyers representing plaintiffs in a class action filed last September against the Patriots and Belichick on behalf of New York Jets season ticket holders who allege injury as a result of the Patriots' actions.  Once a party is put on notice of potential litigation, it must take affirmative steps to preserve evidence relevant to the claims and defenses in the action.  Destruction of such evidence is called "spoliation" and can result in sanctions, including an adverse instruction to the jury that the evidence was relevant and damaging to the party that destroyed it.

On January 7, 2008, Southern District of California Magistrate Court Judge Barbara Major issued an order granting sanctions against Qualcomm, Inc. and six of its retained lawyers for their collective failure to produce more than 42,000 documents.

In Qualcomm, Inc. v. Broadcom Corp., 05cv1958-B (BLM) (S.D. Cal. 2008), Judge Major found that Qualcomm 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.  According to the court, one or more of Qualcomm's retained lawyers chose not to look in the correct location for relevant electronic documents and/or ignored the warning signs that their document searches and productions were inadequate.  According to the court, these failures ultimately led to a flurry of misleading assertions and arguments to the court and jury. 

The sanction against Qualcomm's retained lawyers included a referral to the State Bar of California.