Blog entries

YouTube ordered to produce Viewing Habits of its Users.

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Viacom Intern. Inc. v. YouTube Inc., Nos. 07 Civ. 2103(LLS), 07 Civ. 3582(LLS), 2008 WL 2627388 (S.D.N.Y. July 2, 2008), is a lawsuit brought by Plaintiff Viacom for alleged copyright infringement by Defendant YouTube. In responding to Plaintiff Viacom's motion to compel production of information from a database storing information about the viewing habits of users of Defendant YouTube's website, the district court judge concluded that Viacom should be provided with all data from [...]

Judge Sanctions State of California with Ediscovery Violations

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L.H. v. Schwarzenegger, No. CIV 5-06-2042 LKK GGH, 2008 WL 2073958 (E.D. Cal. 2008), is a class action lawsuit filed by juvenile parolees who allege that the parole revocation process in California violates due process rights under the Fourteenth Amendment of the Constitution. In several motions to compel discovery, the plaintiff juvenile parolees argued that the defendants delayed production of documents to the de [...]

Court Denies Cost Shifting of Forensic Costs

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In the latest of several Pescoff 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. Judge Facciola previously addressed the sufficiency of a search done by the responding party for emails and other electronically stored information in response to discovery r [...]

9th Cir. Rules "Operational Reality" prohibits Police Department Review of Officer's ...

clynn

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 allegatio [...]

Judge Rules that Jury Can Hear Details of "Evidence Eliminator"

clynn

In, Carter Bryant v. Mattel Inc, (Case No. 2:04CV9049 C.D. Cal.), the court has decided that the jury will 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 in its highly successful Barbie doll line. Bryant is the creator of the popular Bratz dolls. Mattel alleges that the concept for the doll came [...]

A/C Privilege Waived Where Counsel Does Limited Doc. Review

clynn

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. However, a great majority [...]

Court Dismissed Criminal Case For Prosecutor's Delay in Producing Ediscovery

clynn

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 [...]

RCA Joins EDRM

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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 associate [...]

Movie Studios Awarded $111 Million But Can they Collect?

clynn

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

Embattled Detroit Mayor Braces as More Text Messages Released

clynn

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, " [...]

You Can Run, But You Cannot Hide!

clynn

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 compute [...]

Blanket Assertions of Hardship Are Insufficient to Warrant Cost Shifting

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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. Defendant 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 [...]

NJ Court Requires Valid Subpoena for ISP records

clynn

The New Jersey Supreme Court held that a valid subpoena is required to seek disclosure of private subscriber information from an Internet Service Provider ("ISP"). In State of New Jersey v. Shirley Reid (A-105-06, April 21, 2008), defendant's employer used a sham subpoena to obtain information from Comcast. The resulting information confirmed the company's suspicion that the defendant had changed the username and password for the company's website. The company turned [...]

Court Holds Declaratory Relief Inappropriate to Determine Preservation Obligation

clynn

In State of Texas v. City of Frisco, 2008 WL 828055 (E.D. Tex. Mar. 27, 2008), the court dismissed as "not ripe for adjudication", plaintiff's request for a declaratory judgment that the defendant's letter seeking the preservation of documents relating to potential litigation violated the Federal Rules of Civil Procedure.

Specifically, the State asked the court to determine "[w]hether it is a violation of Rule 26(f) and 34 to require an entity to broadly [...]

Emergency Response Systems Coming to Cell Phones

clynn

According to CNN, the Federal Communications Commission is expected to announce a nationwide alert system that will use cell phones or other mobile devices to send text messages to Americans during a widespread disaster, severe weather, child abduction or other emergency.

Cell phone companies have indicated that they plan to sign up for the service. It appears that cell phone service subscribers will be automatically enrolled in the program, but may opt out.

Plaintiff's Previous Production of PDF & Hard Copy Sufficient Without Metadata

clynn

There's an old saying that long case titles make good law. Well, we can add to the list the case of Autotech Technologies Limited Partnership v. Automationdirect.com, 2008 WL 902957 (N.D. Ill. April. 2, 2008).

In response to defendant's document request, plaintiff produced, among other things, a hard copy and PDF copy of a document entitled "EZTouch File Structure." Plaintiff unsuccessfully moved to compel a copy of the document in its native Microsoft® Wor [...]

White House Email "Scandal": Is it All Smoke and No Fire

clynn

In Alexander v. F.B.I, 2008 WL 903115 (D.D.C. April 3, 2008), district court held that neither the White House nor its counsel acted in bad faith or engaged in any obstruction of justice related to missing and deleted emails. The court's ruling followed an evidentiary hearing to determine the veracity of statements regarding the storage and archival of emails in the White House's automated records management system. It turned out that some emails were not archived due to a & [...]

Court Denies Motion to Depose Hilary Clinton

clynn

The White House email debacle continues in Alexander v. F.B.I., 2008 WL 879296 (D.D.C. March 31, 2008). In addition to denying plaintiffs' motions for orders to show cause regarding discovery disputes as to electronic information requested from the White House, the court also denied plaintiffs' motion to depose the former first lady Hilary Rodham Clinton.

Court Orders "Limited Inspection of Computers for Party "Kicking and Screaming"

clynn

In U & I Corp. v. Advanced Medical Design, Inc., 2008 W.L. 821993 (M.D. Fl. March 26, 2008), plaintiff, a medical equipment company based in Korea, blamed its failure to preserve and produce documents on "confusion, software formatting, language barriers and understanding of the U.S. legal system." The court was not moved and held that plaintiff failed to show a substantial justification for its failure and unwillingness to abide by court orders and the rules o [...]

Court Orders Mirror Image of Employment Plaintiff�s Home Computer

clynn

In Coburn v. PN II, Inc., 2008 WL 879746 (D. Nev. March 28, 2008), an employment discrimination action, the court ordered the parties to meet, confer and agree on a designated computer expert to create a "mirror image" of hard drives on plaintiff's home computers. The defendant bears all costs associated with the expert. The court's order includes a protocol to protect against disclosure of privileged information contained on plaintiff's hard drives.