Post Process

Everything to do with E-discovery & ESI

Archive for August 28th, 2007

Case Blurb:Powers; Standard for whether to allow forensic exam of a hard drive

Posted by rjbiii on August 28, 2007

The standard by which the court determines whether to allow a forensic inspection of the adversary’s computer is provided by Rule 26(b)(2).
Rule 26(b)(2) not only permits but requires the court to curtail discovery efforts in a number of circumstances: if the discovery sought is unreasonably cumulative or duplicative or is attainable from some other source that is more convenient or less burdensome; when the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or when the balance of burden and expense outweighs the information’s likely benefit. Powers v. Thomas M. Cooley Law School, 2006 WL 2711512 (W.D. Mich. 2006).

Posted in 6th Circuit, Case Blurbs, Computer Forensics, Duty to Preserve, FRCP 26(b), Undue burden or cost, Unreasonably Cumulative, W.D. Mich. | Leave a Comment »

Case Blurb: WESTLB AG; Key Players defined

Posted by rjbiii on August 28, 2007

Key players are “individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Quinby v. WESTLB AG, 2006 WL 2597900 (S.D.N.Y. 2006) (citing Chan v. Triple 8 Palace, Inc., 03 Civ 6048(GEL)(JCF), 2005 WL 1925579 at 6 (S.D.N.Y. 2005) (quoting Zubulake IV, 220 F.R.D. at 218)).

Posted in 2nd Circuit, Case Blurbs, Key Players, S.D.N.Y | Leave a Comment »

Case Blurb: Leon; Willful Spoliation defined

Posted by rjbiii on August 28, 2007

A party’s destruction of evidence qualifies as willful spoliation if the party has “some notice that the documents were potentially relevant to the litigation before they were destroyed. Leon v. IDX Systems Corp., 464 F.3d 951 (9th Cir. 2006) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)).

Posted in 9th Circuit, Case Blurbs, Document Retention, Duty to Preserve, Judge A. Wallace Tashima | Leave a Comment »

Case Blurb: NTL Securities Litigation; Counsel required to monitor compliance to litigation hold

Posted by rjbiii on August 28, 2007

[I]t is not sufficient to notify all employees of a litigation hold and expect that the party will then retain and produce all relevant information. Counsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched.”). In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Litigation Hold, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; FRCP 34(a) and possession of documents

Posted by rjbiii on August 28, 2007

Under Rule 34(a), parties may request from their adversaries documents (including ESI) “which are in the possession, custody or control of the party upon whom the request is served.”
The concept of ‘control’ has been construed broadly.
The test for the production of documents is control, not location. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Duty to Preserves includes relevant ESI in existence at time duty attached

Posted by rjbiii on August 28, 2007

The preservation requirement includes all relevant documents (including electronically stored information) that were “in existence” as of the time that the duty to preserve attached. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Scope of duty to preserve and key players

Posted by rjbiii on August 28, 2007

The duty [to preserve evidence] also includes documents prepared for those individuals [“key players”], to the extent those documents can be readily identified (e.g., from the ‘to’ field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is ‘relevant to the subject matter involved in the action.’ Thus, the duty to preserve extends to those employees likely to have relevant information–the ‘key players’ in the case. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, Key Players, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; Scope of the Duty to Preserve

Posted by rjbiii on August 28, 2007

The duty to preserve extends “to any documents or tangible things (as defined by Rule 34(a) [including email] ) made by individuals ‘likely to have discoverable information that the disclosing party may use to support its claims or defenses.’ In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007).

Posted in 2nd Circuit, Case Blurbs, Duty to Preserve, FRCP 34(a), Key Players, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: NTL Securities Litigation; what documents fall under duty to preserve

Posted by rjbiii on August 28, 2007

A party or anticipated party must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. In re NTL Securities Litigation, 2007 WL 241344 (S.D.N.Y., Jan. 30, 2007) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y.2003)).

Posted in 2nd Circuit, Case Blurbs, De-Duplication, Duty to Preserve, Magistrate Judge Andrew J. Peck, S.D.N.Y | Leave a Comment »

Case Blurb: Crandall; source of court’s power to require preservation of evidence

Posted by rjbiii on August 28, 2007

[The court’s] authority [to require the preservation of evidence] emanates from the inherent powers of the federal courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. Crandall v. City and County of Denver Colorado, 2006 WL 2683754 (D. Colo. 2006) (citing Jordan F. Miller Corp. v. Mid-Continent Aircraft Svc., Inc., 139 F.3d 912 (10th Cir. 1998)).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, Inherent Power of Fed. Courts, Magistrate Judge Michael Hegarty | Leave a Comment »