Post Process

Everything to do with E-discovery & ESI

Case Blurb: Nursing Home Pension Fund; Court discusses ‘legal control’ of evidence

Posted by rjbiii on September 15, 2008

[Requesting Party] additionally allege[s] that defendants failed to preserve or destroyed documents created in preparation for a book entitled Softwar: An Intimate Portrait of Larry Ellison and Oracle (“Softwar” ). The book was written by Matthew Symonds, an author and editor with The Economist, who conducted at least 135 hours of recorded interviews between March 2001 and August 2002 with defendant Ellison. In October 2006, plaintiffs moved to compel defendants to produce the transcripts and audio files of these Softwar interviews. Defendants argued that the materials were not in their custody or control, and Symonds also asserted that the materials were his sole property. On January 2, 2007, Special Master Infante determined that although such materials were in the physical possession of Symonds, Ellison had legal control of them pursuant to a contract between Symonds and Ellison. Winkler Decl. ex. 194. As a result, Special Master Infante ordered defendants to produce copies of “any interview notes, transcripts or tape recordings relating to the book.” Id. at 4. Shortly thereafter, it was revealed that Symonds no longer had the materials in question, and it appears that Symonds may have discarded the laptop computer containing the transcripts and audio files after he learned of plaintiffs’ motion to compel.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *2 (N.D.Cal. Sept. 2, 2008).

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