Recent Articles

Requiring defendant to restore backup tapes would have violated proportionality standard

Hinshaw & Culbertson
November 09, 2011 06:01

Madere v. Compass Bank, 2011 WL 5155643 (W.D.Tex. October 28, 2011) Plaintiff sued her former employer for violation of the Family and Medical Leave Act. She requested defendant produce emails from 2007 and 2008 concerning her FMLA leave and termination. Defendant produced only those emails that...

Model order for ediscovery is not just for patent troll cases

Hinshaw & Culbertson
November 07, 2011 20:18

DCG Systems, Inc. v. Checkpoint Technologies, LLC, 2011 WL 5244356 (N.D. Cal. November 2, 2011) In September 2011, the Federal Circuit promulgated a model order for courts to use in managing the high costs of ediscovery in patent cases. A key feature of the model order is restrictions on email...

Puiszis authors feature article on DRI Today about model orders governing electronic discovery

Hinshaw & Culbertson
October 03, 2011 22:13

Hinshaw’s Steve Puiszis has written a feature article on DRI Today titled Groundbreaking Model Ediscovery Order In Patent Cases Is Announced. Puiszis observes that: The model ediscovery order for patent cases is groundbreaking. Just as the federal discovery rules presumptively limit parties...

Court orders phased discovery under Rule 26’s proportionality principles pending resolution of dismissal motion

Hinshaw & Culbertson
December 08, 2010 23:40

Tamburo v. Dworkin, 2010 WL 4867346 (N.D. Ill. Nov. 17, 2010) Proving once again that it is a “dog-eat-dog world,” plaintiffs’ lawsuit stemmed from a dispute involving a dog-pedigree software program. Plaintiffs developed the software program from information found on the defendants’ web-sites,...

Making the case for uniform culpability standards for ediscovery sanctions

Hinshaw & Culbertson
October 05, 2010 18:07

Victor Stanley, Inc., v. Creative Pipe, Inc., 2010 U.S. Dist. LEXIS 93644 (D.Md., Sept. 9, 2010), (“Victor Stanley II“) The sanctions entered in Victory Stanley II, which included a civil contempt finding and potentially up to two years of jail time for egregious ediscovery violations,...

Stored Communications Act limits Gmail information obtainable pursuant to subpoena

Hinshaw & Culbertson
September 30, 2010 20:35

Beluga Shipping GMBH & Co. KS Beluga Fantastic v. Suzlon Energy LTD., 2010 WL 3749279 (N.D. Cal., Sept. 23, 2010) Court rules that under the Stored Communications Act, account holder consent is required to obtain copies of emails in Google’s possession. Before you issue a subpoena seeking...

Ediscovery ethics – use of clawback agreements – don’t forget to protect yourself when protecting your client’s information

Hinshaw & Culbertson
September 28, 2010 17:57

The comments to Model Rule 1.6 explain that a lawyer “must act competently to safeguard” client information against the inadvertent or unauthorized disclosure by a lawyer or anyone who is subject to the lawyer’s supervision. The use of clawback agreements in electronic discovery has become...

Rule 37(e)’s safe harbor provision used to limit sanctions requested under the court’s inherent authority

Hinshaw & Culbertson
September 20, 2010 11:48

Grubb v. Board of Trustees of Univ. of Ill., 2010 WL 3075517 (N.D. Ill., Aug. 4, 2010) One of the limitations in the protection provided by Fed.R.Civ.P. 37(e)’s “Safe Harbor” provision is that it ostensibly only applies to ediscovery sanctions “under these rules.” For that reason, I have referred...

Privilege not waived where son of technologically unskilled parties opened email attachments

Hinshaw & Culbertson
September 16, 2010 15:35

Green v. Beer, No. 06-4156, 2010 WL 3422723 (S.D.N.Y. August 24, 2010) Plaintiffs were not computer savvy and did not know how to open email attachments. But their son was not so lacking in proficiency. So plaintiffs’ lawyers sent certain communications and documents to plaintiffs’ son, who then...

Failing to issue a litigation hold letter is not per se evidence of sanctionable conduct

Hinshaw & Culbertson
September 09, 2010 14:28

Haynes v. Dart, 2010 WL 140387 (N.D. Ill., Jan. 11, 2010) Here at Practical Ediscovery, we are always on the lookout for decisions that bring a little bit of sanity to the crazy world of ediscovery. Therefore, we thought the Haynes decision was worth a mention. While Haynes involved the alleged...