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Archive for the ‘9th Circuit’ Category

Case Summary: U-Haul Int’l; Authentication of Database Summaries and the Underlying Data

Posted by rjbiii on October 16, 2009

Lumbermens Insurance company objected to a Trial Court’s admission of computer generated summaries of payments for loss adjustments produced by another insurance company. Each summary related to a specific individual insurance claim. Lumbermens appealed to the ninth circuit.

Lumbermens first contended that the summaries are hearsay not fitting within the business records exception (FRE 803(6)) of the FRE, and therefore should have been excluded.
The court began by explaining that FRE 803(6) allows records of regularly conducted business activity meeting the criterial laid out as follows constitute an exception to the prohibition against hearsay evidence:

A . . . report, record, or data compilation, in any form, of acts, events, condition, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the . . . report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The court then reiterated its previous stance that it is immaterial that business records are maintained in a computer rather than in company books. The logical extension of this principle is that evidence that has been compiled from a computer database is also admissible under the business records exception, provided it meets the criterial of FRE 803(6). The court quoted several decisions, including Weinstein’s Federal Evidence, which stated that “The important issue is whether the database, not the printout from the database, was compiled in the ordinary course of business.”

The court concluded that the summaries fit squarely within the exception provided under FRE 803(6). It noted that the trial court had concluded:

  1. the underlying data was entered into the database at or near the time each payment was made;
  2. the persons entering the data had knowledge of the payments that precipitated the data entry;
  3. the data was kept in the course of regularly conducted business activity; and
  4. Mr. Matsush, the authenticating witness, was qualified to testify to this information.

The court concluded that nothing in the record indicated that any of these findings were clearly erroneous.

Mr. Matush’s testimony that data entry for each payment occurs at the time of the payment, and that employees routinely queried the database to generate summaries. The court continued it’s description:

Matush testified that he was familiar with the record-keeping practices of the company, testified regarding the computer system used to compile and search the insurance claim records, and testified regarding the process of querying the computer system to create the summaries admitted at trial. This description of the process used to create the summaries was sufficient to authenticate the evidence, and the district court did not abuse its discretion in holding that a sufficient foundation was laid to admit the exhibits.

(Emphasis added).

Finally, the court was unconvinced by Lumbermens’ arguments that the summaries were inadmissible under FRE 1006, allowing summaries of “voluminous” writings to admitted only if the original data is accessible. The court stated that the summaries themselves are the business records, and so no additional data needed to be made available.

Posted in 9th Circuit, Admissibility of ESI, Authentication, Case Blurbs, Circuit Judge J. Clifford Wallace, Databases, FRE 1006, FRE 803, Uncategorized | Leave a Comment »

Case Blurbs-CA: Kearney;State Spoliation Claim Requirements Discussed

Posted by rjbiii on July 16, 2009

Spoliation of evidence is the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation.” Hernandez v. Garcetti, 68 Cal. App. 4th 675, 680, 80 Cal. Rptr. 2d 443 (Ct. App. 1998). The district court rests its holding on the fact that the tort is not recognized when “the spoliation was or should have been discovered before the conclusion of the litigation.” It held that, because the state trial and appellate courts found Defendants did not withhold evidence and Kearney could have discovered evidence during discovery or trial, Kearney had not showed a probability of prevailing on the merits.

Kearney argues that her spoliation claim was based on the evidence that Defendants told the testing company not to prepare a formal report, and notes that this evidence was not mentioned by either state court. Kearney’s allegations do not indicate when she discovered this evidence, only that she believed the event occurred in 2001, which was prior to the valuation trial. Because Kearney may be able to show a probability of prevailing on the merits here, (FN5) we vacate the district court’s holding on this issue and remand to determine whether she discovered or should have discovered the evidence prior to or during the valuation trial.

The district court found Kearney had not showed a probability of success on the merits here because it found the claim barred by both the Noerr-Pennington doctrine and California’s litigation privilege and because it was unpersuaded to apply the prima facie tort claim as had been done in the case law cited by Kearney.

As analyzed above, the Noerr-Pennington doctrine does not bar this suit because, even if the doctrine applied, the sham exception would also apply.

Nonetheless, we find that the district court did not err when it held that California’s litigation privilege would bar Kearney’s claims. Though Kearney argues that her claims are based on conduct prior to the litigation, the district court was correct that even allegations of such conduct may be privileged if reasonably related to the action. See People ex rel. Gallegos v. Pacific Lumber Co., 158 Cal. App. 4th 950, 958, 70 Cal. Rptr. 3d 501 (Ct. App. 2008) (“[T]he privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (internal quotation marks omitted)). Because the alleged misconduct is all reasonably related to the eminent domain proceeding, it is subject to the litigation privilege bar.

FN5: Spoliation claims are exempted from the litigation privilege. Cal. Civ. Code § 47(b)(2).

Kearney v. Foley & Lardner, LLP, 566 F.3d 826, 838-39 (9th Cir. Cal. 2009)

Posted in 9th Circuit, Case Blurbs-CA, Judge David Alan Ezra, Spoliation | Leave a Comment »

Case Blurb: Relion, Inc; Multiple failures lead to a waiver of privilege

Posted by rjbiii on April 10, 2009

[Post Process: the court applies FRE 502(b) for its analysis of a situation of inadvertent production]

On the basis of this evidence, I conclude that [Producing Party] has not carried its burden of disproving waiver. [Producing Party’s] discovery documents were inspected by attorneys and support staff…before they were produced… As the incident involving the re-exam file indicates, there was no surprise or deception on the part of [Requesting Party’s] counsel. [Counsel for Producing Party] not only had the opportunity to inspect the documents prior to the arrival of [Requesting Party’s] counsel, it had two additional opportunities to do so after [Requesting Party] had reviewed [Producing Party’s] documents, as [Requesting Party] provided [Producing Party’s] counsel with both hard copies and electronic, text-searchable copies of the documents [Requesting Party] had selected for copying. I conclude that [Producing Party] did not pursue all reasonable means of preserving the confidentiality of the documents produced to [Requesting Party], and therefore that the privilege was waived. The fact that [counsel for Producing Party] did not intend to produce any privileged documents is not dispositive.

Relion, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008 ).

Posted in 9th Circuit, Case Blurbs, D. Or., FRE 502, Privilege, Waiver of Privilege | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Standards for the imposition of ‘lesser sanctions’

Posted by rjbiii on September 15, 2008

The parties debate whether plaintiffs must demonstrate prejudice before the Court can impose lesser sanctions. The Ninth Circuit has recognized that it has sent conflicting signals regarding whether prejudice must be shown in order for the sanction of dismissal to be appropriate. A court in this district recently clarified that the Ninth Circuit has required a showing of prejudice only when courts are acting under Federal Rule of Civil Procedure 37, which applies when a party disobeys a court order regarding discovery. When acting under its inherent authority, however, a district court need not consider prejudice to the party moving for sanctions…and prejudice has not been required when a party moves for lesser sanctions. Here, the Court is considering lesser sanctions in the form of an adverse inference, and even assuming prejudice is required, the Court notes that it would be quite difficult for plaintiffs to demonstrate how they were harmed by evidence to which they do not have access.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *5 (N.D.Cal. Sept. 2, 2008) (internal citations removed).

Posted in 9th Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Process to Determine nature of sanctions a court should impose for destruction of evidence

Posted by rjbiii on September 15, 2008

In determining whether and what type of sanctions to issue, the Third Circuit has explained that courts should consider three factors: 1) “the degree of fault of the party who altered or destroyed the evidence,” 2) “the degree of prejudice suffered by the opposing party,” and 3) “whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Schmid v. Milwaukee, 13 F.3d 76, 79 (3rd Cir.1994); see also Toste, 1996 WL 101189 at * 2 (“[A] party’s motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.”). The Ninth Circuit has also explained that “[b]efore imposing the ‘harsh sanction’ of dismissal,” courts should consider “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Leon, 464 F.3d at 958. However, district courts “need not make explicit findings regarding each of these factors.” Id.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008)

Posted in 9th Circuit, Case Blurbs, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Nursing Home Pension Fund; Court lists ‘three types of sanctions’ available for destruction of evidence

Posted by rjbiii on September 15, 2008

Courts have developed three types of sanctions for destruction of evidence. First, a court can instruct the jury that it may infer that evidence made unavailable by a party was unfavorable to that party.
Second, a court can exclude witness testimony based on the spoliated evidence.
The third and harshest of sanctions is to dismiss the claim of the party responsible for the spoliation.

Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 at *4 (N.D.Cal. Sept. 2, 2008).

Posted in 9th Circuit, Case Blurbs, Judge Susan Illston, N.D. Cal., Sanctions, Spoliation | Leave a Comment »

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).

Posted in 9th Circuit, Case Blurbs, Data Sources, Duty to Preserve, Duty to Produce, FRCP 34(a), Judge Susan Illston, N.D. Cal., Possession or Custody or Control Of Evidence | Leave a Comment »

Case Blurb: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

Posted by rjbiii on July 3, 2008

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party’s] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party’s] reasonable requests.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Data Collection, Data Sources, Duty to Produce, Form of Production, Hard Drive Inspections, Judge Ronald B. Leighton, Objections to Discovery Requests, Overly Broad Request, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Younessi; Court Weighs Trade Secrets’ need for Secrecy vs. Discovery’s Need for Disclosure

Posted by rjbiii on July 3, 2008

[Producing Party] claims that production of its hard drives would necessarily reveal its trade secrets. Trade secrets have long been recognized as property. Because of their fleeting nature, once trade secrets are disclosed to outside parties they lose their value and the property right is extinguished. The Court recognizes [Producing Party’s] interest in keeping its trade secrets out of the public eye, and particularly away from its competitors.

[Requesting Party’s] request for [such records] are highly relevant. Even if [Producing Party] cannot reasonably produce the actual content of communications, [Requesting Party] could use records produced which indicate dates and times of communications for purposes of deposition and cross examination. Given the nature of [Requesting Party’s] allegations, it is reasonable to assume that none of the witnesses to such communications will be forthcoming in testifying without some of the information sought through discovery to direct their questioning. This meets the “good cause” standard.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, Case Blurbs, Duty to Disclose, Duty to Produce, Good Cause, Judge Ronald B. Leighton, Objections to Discovery Requests, Trade Secrets, W.D. Wash. | Tagged: , | Leave a Comment »

Case Blurb: Younessi; Scope of Discovery, Bias Towards Disclosure

Posted by rjbiii on July 3, 2008

Discovery is generally available regarding any nonprivileged information relevant to any party’s claims or defenses. Fed.R.Civ.P. 26(b)(1). Discovery being broad in scope and biased toward disclosure, requests need only be “reasonably calculated to lead to the discovery of admissible evidence.” Id.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 at *2 (W.D. Wash. June 20, 2008 )

Posted in 9th Circuit, FRCP 26(b), Judge Ronald B. Leighton, Scope of Discovery, W.D. Wash. | Tagged: , | Leave a Comment »