• CIVIL

U.S. District Court of Maryland

Williams v. Long

Printed Government Webpages are Self-Authenticating

The plaintiffs filed for conditional class action certification and submitted several affidavits and printed web pages from official web sites, consisting of case search results and a copy of a similar complaint in support of the motion. The issue was whether electronically stored information was self authenticating and acceptable as evidence? The court held that since the web pages were printed from government web sites, they were self-authenticating, "official publications," and thus clear the authentication hurdle and therefore, acceptable as evidence relevant to the issue of class certification. The court therefore, granted the plaintiff's motion to conditionally certify the class.

• CONTRACT

U.S. District Court-Eastern District of Michigan

Laethem Equipment Co. v. Deer and Co.

Discovery Misconduct Irrelevant to Attorney-Client Privilege Waiver: Analysis under New Federal Rule of Evidence 502

In the instant breach of contract dispute, wherein the issue related to privilege waiver under new Fed.R.Evid. 502(b), the defendant sought production of electronically stored information (ESI) and an order establishing waiver of the attorney-client privilege based on plaintiffs' alleged discovery misconduct. The defendant contended that the plaintiffs withheld relevant e-mails, were untruthful in past discovery responses and waived privilege by inadvertently disclosing two disks. Opposing the motion, the plaintiffs argued they had properly responded to each of the defendant's requests and that additional production would be an undue burden. The Court held that as per Federal Rule of Evidence 502(b), disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) reasonable steps were taken to prevent disclosure and (3) reasonable steps were taken to rectify the error. Finding each of these criteria was satisfied, the court held that privilege was not waived. The court noted that Fed.R.Evid. analysis does not take into consideration alleged discovery abuses, focusing instead on the disclosure of the privileged information itself.

• COMMERCIAL

U.S. District Court- District of New Jersey

Opperman v. Allstate New Jersey Ins. Co.

Grant of Access to Proprietary Software Owned by Third-Party Upon Showing of Necessity

In the present lawsuit, the plaintiffs sought production of third-party owned proprietary software licensed and used by the defendants. The plaintiffs claimed they needed unfettered access to the software to determine how the defendants determine property loss adjustments and if the supply prices were manipulated or altered. The defendant and third-party opposed same claiming that all relevant evidence was previously produced and that unfettered access was not necessary. The Court finding that the software was relevant and necessary to the plaintiffs' claims ordered the defendant to produce the software in an accessible form. However, in order to circumvent the potential harm of allowing discovery of the third-party trade secret, the court entered a Discovery Confidentiality Order, limiting access and use of the software by the plaintiff.