Discovery Resources

This event, presented by Rutgers School of Law, brings together some of the most respected and knowledgeable in-house experts, judges, lawyers, and litigation support professionals for a multi-disciplinary symposium designed specifically for businesses to help them contain costs, reduce risk, achieve results, and deliver enduring value to their organizations.

Speakers include Steven C. Bennett, Esq., Partner at Jones-Day, Rutgers e-discovery Law Professor, Fernando M. Pinguelo, Esq., Partner and Co-Chair of Response to Electronic Discovery and Information Group (REDI), Norris McLaughlin & Marcus, P.A, Terri L. Reicher, Esq., Associate Vice President and Associate General Counsel, Financial Industry Regulatory Authority, Inc., Washington, DC, The Honorable Michael A. Shipp, U.S.M.J., United Statescontinue…

Judge hammers company for using hard drive-cleaning software during litigation.
By Will Hilton

Kucala Enterprises, Ltd. v. Auto Wax Co., Inc., 2003 WL 21230605 (N.D.Ill.)

Employer Implicated: Company Owner/Executive

eLesson Learned: Do not use hard drive-scrubbing software to destroy computer documents in the middle of a lawsuit, and listen to your lawyer when he tells you not to do so.

This case involves evidence spoliation where one party made an amazing gaffe during the information discovery part of litigation, often called “discovery.”  Kucala Enterprises and its owner, John Kucala (collectively “Kucala”), filed a lawsuit against Auto Wax Company (“Auto Wax”) in 2001 to invalidate a patent owned bycontinue…

Good planning makes for less litigation

By Tim Cedrone

Hagenbuch v. 3B6 Technologies, LLC, 2006 U.S. Dist. LEXIS 10838 (N.D. Ill. 2006)

Employee/Employer Implicated: Management

eLesson Learned: Reach an agreement with the other party on how documents will be produced.

What happens when a company accused of patent infringement agrees to certain electronic discovery procedures and then fails to follow those procedures? The answer is very simple: the court turns into the Incredible Hulk! Court get angry! Court smash! Court bash!

In Hagenbuch v. 3B6 Technologies, LLC, the plaintiff accused the defendant of patent infringement related to devices for onboard weighing systems for vehicles.  During the coursecontinue…

By Tanya Basu

State v. Voorheis, 844 A.2d 794 (Vt. 2004)

Employee Implicated:  A (Perverted) Defendant

eLesson Learned: Instant messaging, or IM, may provide realtime convenience and conferencing capabilities, but it creates a written business record that may be subpoenaed and used as evidence in litigation or regulatory investigations.

E-mail use is on the decline as businesses rely more on instant messaging (IM) for its realtime convenience and conferencing capabilities.  State v. Voorheis shows us that the impact of IM on litigation will become more significant with its increased use.

The Facts

A Vermont jury convicted Defendant of incitement and attempt to use a childcontinue…

A bankruptcy judge in the Northern District of Ohio has forbidden a creditor from using information on its own electronic database to prove an administrative claim against a debtor’s estate because it refused to provide the debtor with access to the database throughout the discovery process

By Patrick Ryan

In re LTV Steel Co., 307 B.R. 37 (N.D. Ohio 2004)

Employer/Employee Implicated: Counsel

eLesson Learned: When producing only a summary of materials on an electronic database, be prepared to make the database itself available for inspection. Failure to allow inspection might lead to preclusion of evidence at trial, or even dismissal of your case.

Incontinue…

Index not required if produced data is searchable
By MWS

In re Lorazepam and Clorazepate Antitrust Litig., 2004 WL 77921 (D.D.C. Jan. 16, 2004).

Employee Implicated: Counsel for Health Insurance Company

e-Lesson Learned: A recipient of produced ESI can’t complain that the data isn’t indexed, so long as it’s readable and searchable.

This will teach you to keep your complaints to yourself, or at least to think outside the box a bit before you file a motion to compel production of an index.  Mylan Laboratories, a company which produced certain generic anti-anxiety medications, was charged with having entered into illegal agreements to monopolize the markets for thosecontinue…

By Tanya Basu

Equity Analytics, LLC v. Lundin, 248 F.R.D. 331 (D.D.C. Mar. 7, 2008)

Employees Implicated: Former employee.

eLesson Learned: Expert testimony, which meets the requirements of Fed. R. Evid. 702, will be required by the court to determine what search terms are sufficient when probing for electronically stored information (“ESI”) on an ex-employee’s personal computer.

In Equity Analytics v. Lundin, Magistrate Judge John M. Facciola, tackled the issue of how to let an employer search an ex-employee’s personal computer in a lawsuit over whether that employee illegally accessed the company’s ESI. 

Equity discovered that its former employee, Timothy Lundin,continue…

By Evan Harris

Kentucky Speedway, L.L.C. v. National Association of Stock Car Auto Racing, Inc., 2006 U.S. Dist. LEXIS 92028 (E.D. Ky.)

Employees implicated: Counsel

eLesson Learned:  Courts have recently become more reluctant to order a party to produce metadata unless the requesting party can show it’s necessary to the case.  Thus, a party should limit its metadata requests to specific documents where the metadata is necessary and relevant.  These requests should also be made in a timely fashion in order to prevent the appearance of a frivolous discovery request.

Kentucky Speedway filed suit against the National Association of Stock Car Auto Racing (“NASCAR”) alleging that NASCAR hadcontinue…

Bloggers Take Their Rightful Place

By Fernando M. Pinguelo and Danielle Walker

One of the greatest opportunities in a journalist’s career is to be part of the White House Press Corps where select reporters cover White House press briefings and press releases.  An even a greater honor is to be called on to ask the President of the United States a question during a press conference.  And with the sustained popularity of this President thus far—early tracking numbers reveal that more people watched last night’s press conference than those who watched the recent season premiere of American Idol – the opportunities magnify beyond one’scontinue…

The Standard for Producing Metadata

By: Shannon P. Hennessy

Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005)

Employee/Employer Implicated:  Counsel and Miscellaneous Employees

eLesson Learned:  When a party is ordered to produce electronic files in the format that they are maintained in the ordinary course of business, the party should produce these files with metadata intact, unless there is an objection, protective order, or agreement otherwise.  Before scrubbing or locking data, parties should look to the Court for guidance.  Further, clear communication in the discovery process will help ease the uncertainty that comes along with e-discovery. 

Plaintiffs sued Sprint claiming age was the maincontinue…