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Case Notes

Google Loses Attempt to Exclude Email from Oracle Trial

The Federal Circuit denied Google’s request to prevent Oracle America, Inc. from using certain email communications from one of Google’s engineers at trial.

Proportionality Test Applicable to Evidence Preservation

Judge McMahon's recent opinion in Pippins v. KPMG LLP confirms that the "proportionality" test of Rule 26(b)(2)(C)(iii) is applicable to a party's decision to preserve evidence.

Georgia Federal District Court Dismisses Renewal Action as Untimely

The court held Georgia’s renewal statute allowed refiling of federal claims within six months of the voluntary dismissal of those claims, not the later dismissal of state-law claims.

Court Refuses to Dismiss Employment Case Compared to Iqbal

This case asked whether it is plausible that a senior official’s actions were discriminatory when she cooperated with another official with knowledge of earlier discrimination.

Court Questions Plausibility Standard, Then Dismisses Complaint

The court expressed concerns about the effects of "plausibility pleading" on the accessibility of federal courts to citizens in all categories of cases.

Tenth Circuit Rules No Post-Trial Appeal of Denied 12(b)(6) Motion

Tenth Circuit ruled that once the plaintiff had prevailed at trial, defendants could not appeal the pretrial denial of a motion to dismiss for failure to state a claim.

Court Refuses to Require Production in Native Format

A recent decision demonstrates how principles of proportionality and estoppel can mitigate the consequences of early over-commitments during initial case discovery planning.

Court Imposes Sanctions More Than a Year after Settlement

In an unusual step, the court recently imposed discovery sanctions in a case tried and settled under a high-low settlement agreement in 2008.

Facciola Holds Spoliation Sanctions Premature until Close of Discovery

Magistrate Judge John M. Facciola rejected a motion for sanctions (without prejudice) based on the alleged destruction of electronic evidence on grounds of prematurity.

No Relief for Firm That Stored Confidential ESI on Backup Tapes

A New York court has refused to modify a confidentiality stipulation to ease the burden of complying with document-destruction requirements on the discovering parties' counsel.

SDNY Addresses ESI in Context of FOIA Request

The Southern District of New York has issued another decision addressing the production of ESI, this time in the context of FOIA requests.

Seventh Circuit Enforces U.S. Discovery Against Foreign Litigant

The Seventh Circuit has held that a foreign company may obtain voluminous records under U.S. discovery rules from a non-U.S. company in furtherance of a foreign lawsuit.

Florida Judge Sanctions DuPont for Fraud on Court

A Florida judge imposed a "civil death sentence" on DuPont based on findings that the company had attempted to exclude and conceal "highly relevant" documents.

SDNY Continues to Digest and React to Pension Committee

Magistrate Judge James Francis issued an interesting decision that appears to break ranks with Judge Shira Scheindlin's landmark Pension Committee decision.

Absence of Prejudice Gives Litigant Free Pass Despite Spoliation

The Western District of New York has held that despite evidence of spoliation, where no prejudice could be shown, the requesting party is not entitled to sanctions.

Court Imposes Sanctions Based on Failure of USB Drive

Rejecting an attempt to invoke the safe-harbor rule, the SDNY imposed sanctions when a litigant was unable to produce documents entrusted to a defective flash drive.

Court Holds Foreign Litigant to U.S. Discovery Rules

The SDNY provided a reminder that foreign litigants involved in litigation before U.S. federal courts must comply with U.S. discovery rules, or face the consequences.

Seventh Circuit Upholds Privilege in Internal Investigations

The Seventh Circuit ruled that attorney notes and memoranda generated during the course of an internal investigation are protected from disclosure.

What to Take Away from Pension Committee: A Top-Ten List

The discussion in Pension Committee regarding ESI discovery duties and the consequences for violating them will no doubt be commented on and deconstructed.

Supreme Court Grants Cert on Time-Barred Claim

On January 15, 2010, the U.S. Supreme Court granted cert in Krupski v. Costa Crociere SpA.

Arista Records, L.L.C. v. Usenet.com, Inc.

In Arista Records, plaintiff Arista claimed Usenet deliberately destroyed and failed to preserve highly relevant material that would have proven its “wide-scale infringement.”

Ashcroft v. Iqbal

In Ashcroft v. Iqbal, the U.S. Supreme Court addressed the pleading standard required to survive a motion to dismiss it previously announced in Bell Atlantic Corp. v. Twombly.

Lake v. City of Phoenix

The court held that the public is not entitled to metadata access when requesting a public record under this statute.

Ho-Chaun Chen and Hossein Barahimi v. Linda Dougherty

The Western District of Washington significantly reduced the attorney fees in an employment discrimination case due to the inexperience of the plaintiff's counsel.

Reliastar Life Insurance Co. of New York v. EMC National Life Co.

The Second Circuit held that arbitrators can award attorney fees in arbitration if a party arbitrates in bad faith, even when the parties expressly contracted to pay their own fees.

Proctor & Gamble Co. v. S.C. Johnson & Son, Inc.

Court declines to shift costs for OCR based on in camera Internet research.

Kvitka v. Puffin Co.

Court dismisses case as sanction for laptop destruction.

Brookdale Univ. Hosp. & Med. Ctr. v. Health Ins. Plan of Greater N.Y.

Court declares privilege must be timely asserted to withhold metadata in email headers.

In re Classicstar Mare Lease Litig.

Court orders native production after production of images, but shifts costs to requesting party.

S.E.C. v. Collins & Aikman Corp.

Court rejects SEC’s limited Rule 34 Search, requires search protocol.

Micron Tech. v. Rambus Inc.

Court declares patents unenforceable as sanction for document destruction.

In re Fannie Mae Sec. Litig.

D.C. Circuit affirms order requiring non-party to pay hefty e-discovery costs.

Kinnally v. Rogers Corp.

Spoliation claim & adverse inference instruction rejected for failure to show actual loss of relevant evidence.

Containment Technologies Group, Inc. v. American Society of Health System Pharmacists

Separate standards for marking under a protective order and filing under seal.

Ponca Tribe of Inds. of OK v. Continental Carbon

Defendant Continental Carbon had withheld hundreds of e-mails from plaintiff, Ponca Tribe of Indians of Oklahoma, and third party defendant ConocoPhillips.

Carpenter v. Mohawk Industries, Inc.

The Eleventh Circuit upheld an order granting a plaintiff’s motion to compel interrogatory responses and produce documents that the defendant contended were protected.

Knipe v. SmithKline Beecham

In FDA law, few issues have recently been as controversial as the issue of federal preemption and whether it applies to state common law claims.

Cason-Merenda v. Detroit Medical Center

Earlier, the court entered an agreed stipulated order governing ESI discoveryr, eflecting that the parties reserved the right to petition the court to limit the scope and burden of discovery.

In re Intel Corp. Microprocessor Antitrust Litigation

The plaintiff, a government contractor, moved to compel the government to produce e-mail, including archived email on backup tapes.

Medellin v. Texas

The U.S. Supreme Court held that President Bush overstepped his authority when he ordered a Texas court to reopen the case of Jose Ernesto Medellin.

Snyder v. Louisiana

The U.S. Supreme Court found that prosecutor Jim Williams improperly excluded blacks from the jury that convicted Allen Snyder of killing his estranged wife's companion.

Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc

The U.S. Supreme Court handed down a landmark decision that finally clarifies the extent and scope of “secondary actor” liability under section 10(b) of the Securities Exchange Act.

Heckenkamp v. United States

The U.S. Supreme Court denied certiori of a Ninth Circuit decision upholding a warrantless search of a personal computer suspected of being used by a hacker.

Parents Involved in Community Schools v. Seattle School District

Two school districts voluntarily adopted plans that relied on race to determine which schools certain children could attend in order “racially balance” the various schools.

Ledbetter v. Goodyear Tire | OVERRULED BY STATUTE

The Supreme Court held that a Title VII plaintiff alleging wage discrimination can only challenge salary decisions made within 180 days of the alleged violation.

Lorraine v. Markel Am. Ins. Co.

The parties offered copies of unauthenticated e-mails as parole evidence. The court denied the motions because they were not supported by admissible evidence.

AAB Joint Venture v. United States

The plaintiff, a government contractor, moved to compel the government to produce e-mail, including archived email on backup tapes.

Tobias v. Davidson Plywood

Court excludes key affirmative defense evidence as sanction under Federal Rule of Civil Procedure 37 for party’s failure to discloses existence of a workers’ compensation policy.

Heartland Surgical Specialty Hosp. LLC v. Midwest Div., Inc.

The court rejected a motion to compel production of documents by a non-party in anti-trust litigation where the documents were withheld on the basis of First Amendment privilege.

Davis v. Washington

The Supreme Court decided two cases in tandem, Davis v. Washington and Hammon v. Indiana, that begin to define the phrase “testimonial statements."

American Bar Association v. Federal Trade Commission

The District of Columbia Circuit held that lawyers are not subject to the privacy provisions of the Gramm-Leach-Bliley Act.

Burlington N. & Sante Fe Ry. Co. v. U.S. District Court

The Ninth Circuit weighs in on the content of the notice required under Rule 26(b)(5), Fed. R. Civ. P., by a party who withholds documents under a claim of privilege.

In re Knapper

The court concluded that Knapper could only prevail on her adversary proceeding claims if a federal court concluded that the default judgments were improperly obtained by the trustee.

Cradle v. Monumental Life Ins. Co.

the plaintiff's claim was reduced to a $70,000 breach-of-contract claim, and the case was remanded to state court because the jurisdictional minimum was not met.

Smith v. Woosley

The Second Circuit found that The Anti-Injunction Act’s “relitigation exception” authorizes a federal court to protect the judgment of another federal court.

In re Subpoena Issued to Commodity Futures Trading Commission

The U.S. District Court for the District of Columbia has declined to recognize a settlement privilege under federal law.

Alperin v. Vatican Bank

The War Objective Claims called upon the Ninth Circuit "to make retroactive political judgment as to the conduct of war."

State Nat'l Ins. Co. v. Yates

State National Insurance Company sought a declaratory judgment that Yates’s liability insurance policy did not provide Yates with coverage for a certain claim.

Carcieri v. Salazar

The Court considered whether the secretary of interior could take land into trust for tribes that were not recognized by the government on the date of enactment, but are currently.

Pearson v. Callahan

The U.S. Supreme Court considered whether qualified immunity may be extended to police officers for alleged Fourth Amendment violations.

Lane v. Dep’t of the Interior

The plaintiff, a former park ranger, brought several claims against the government for withholding information in an underlying litigation.

Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.

Supreme court holds a district court may dismiss on forum non conveniens grounds even if it has not first determined that the case is within its jurisdiction.

Merritt v. Hopkins

Although the court ultimately found in favor of the defendant firm, this case underscores the potential weight that can be given to an attorney's initial valuation of the worth of a lawsuit.