Second Circuit Rules that Percentage Fees Should be Awarded on the Entire Fund Made Available to Claimants.

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In an anti-trust case, a cy pres distribution was made on unclaimed funds. The Second Circuit reversed the District Court’s fee award, which was limited to a percentage of the funds actually distributed to the class. “In this case, the District Court calculated the percentage of the Fund on the basis of the claims made against the Fund, rather than …

District Judge in New Jersey Imposes Multiple Sanctions Against Defendant for E-Discovery Spoliation and Abuse.

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In case where defendant was found to have submitted false and misleading evidence to the court regarding its efforts to make restitution, Health Net was also sanctioned for engaging in widespread discovery abuse, including the failure to search thousands of employees’ e-mails for responsive documents as well as the permanent loss of many others due to the defendant’s retention/deletion policies. …

Third Circuit Finds That Communications Regarding the Obligation to Preserve E-Mail and Other Files May Not Be Protected Under Crime-Fraud Exception.

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In response to a subpoena served in the course of an ongoing grand jury investigation, the recipient of the subpoena conferred with counsel regarding her preservation obligations. The district court compelled production of the notes taken by the attorney, under the crime-fraud exception, and the U.S. Third Circuit affirmed. “At the time of Jane Doe’s January 20, 2005 conversation with …

ABA Committee Concludes that an Attorney May Review and Utilize Metadata in Electronic Documents Received from Opposing Counsel.

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In a Formal Opinion issued by the Standing Committee on Ethics and Responsibility, the ABA indicates that Rule of Professional Conduct 4.4(b) does not require an attorney to return metadata or other embedded information within electronic documents, even where such transmission could be considered “inadvertent”. The opinion assumes that the receiving lawyer acted lawfully and ethically in obtaining the electronic …

An Attorney in a Product Liability Suit Was Sanctioned $13,691.50 for Violating a Protective Order.

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The plaintiff’s attorney in a product liability suit admitted that he provided a “confidential” deposition to unauthorized persons under the court’s protective order, arguing that the tire company waived confidentiality by voluntarily providing the deposition to plaintiffs’ attorneys in another case. The tire company provided portions of the deposition in the other case only after being ordered to do so, …

District Court in New York Holds that Employee Working at Home on Laptop Supplied by Employer Does Not Waive Attorney-Client Privilege.

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Plaintiff worked primarily out of her home office, and was assigned a company-owned Mac laptop computer, until May 2003, when she was told that she would be converting to a Dell. Prior to transfering her work-related files from the Mac to the Dell, the plaintiff deleted her personal files from the Mac, including notes and e-mails she had sent to …

New York Appellate Division Rejects “Trade Secrets” Claim of Tire Manufacturer, Citing Discovery Abuses in Other Cases.

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Plaintiffs filed a tread separation case against Cooper Tire. Defendant’s non-responsive answers to the plaintiff’s discovery requests were part of Cooper’s “programmed response” to discovery, as evidenced by five court orders in five different lawsuits against in which both State and Federal courts had held that the company engaged in “wilful disobedience” and “bad faith”. Despite the entry of a …

Lucent and Counsel to be Sanctioned for Withholding and Destroying Documents in Patent Infringement Case.

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Judge Ward in the Eastern District of Texas issued a ruling in November indicating that Lucent and Lucent’s counsel would be sanctioned in a patent infringement case. Lucent withheld four critical documents during much of the discovery process, revealing them in the eleventh hour in support of it’s expert’s rebuttal report. At the same time, deposition testimony made it clear …

Eleventh Circuit finds that adverse inference is insufficient where owner allows vehicle to be sold for salvage in crashworthiness suit.

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Following an accident in 1996, the plaintiff sent a letter to Daimler Chrysler notifying it of the accident and of the airbag’s failure to deploy. Daimler Chrysler replied to the letter, requesting the location of the vehicle for inspection purposes. Flury’s counsel never responded to defendant’s letter. Around six months later, the vehicle was sold. In 2002, the plaintiff filed …

Ninth Circuit holds that website intake from potential clients is not subject to disclosure.

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Granting a mandamus in an action where attorneys were compelled to turn over initial responses by clients on the Internet in suit against the makers of Paxil, the court re-affirmed the principle that the attorney-client privilege extends to initial consultations, even where the attorney and client acknowledge that no formal attorney-client relationship has been established. ‚ÄúPotential clients must be able …