The Public Lawyer

Public Lawyers Nevada Supreme Court Cases Section

July 2010 Bahena v. Goodyear Tire & by “not less than twenty-five Rubber Co., 126 Nev. Adv. Op. percent (25%) of the number” No. 26 (July 1, 2010) In this ap- of registered voters “who actu- peal we consider whether the dis- ally voted in the state or in the trict court abused its discretion county, district, or municipality when it struck a defendant’s an- [that the officer] represents, at swer, as to liability only, as a the election in which [the offi- discovery sanction pursuant to cer] was elected.” Nev. Const. NRCP 37(b)(2)(C) and NRCP art. 2, § 9. 37(d). We conclude that the dis- trict court did not abuse its dis- The question presented cretion by imposing non-case is whose signature counts to- concluding sanctions and by not ward the 25 percent needed to holding a full evidentiary hear- qualify a recall petition. Is it ing. We further conclude that any registered voter, as the dis- the district court exercised its trict court held? Or must the inherent equitable power and signatures come from those reg- properly applied the factors set istered voters who in fact— forth in Young v. Johnny Ribeiro “actually”—voted at the elec- tion in which the public officer Building, 106 Nev. 88, 92-93, Inside this issue: 787 P.2d 777, 780 (1990). We was elected, as the Secretary of therefore affirm the judgment of State and the Attorney General the district court. have concluded? Reasonable LAW.COM 3 policy arguments exist on both Strickland v. Waymire, 126 Nev. sides. But Article 2, Section 9’s text and relevant history con- Adv. Op. No. 25 (July 1, 2010) Ninth Circuit 7 These consolidated appeals re- vince us that the latter reading is Cases quire us to interpret Article 2, more faithful to the provision’s Section 9 of the Nevada Consti- test and the evident understand- tution, which subjects every pub- ing of the citizens who enacted Krollon- 10 lic officer in Nevada to recall by it. We therefore reverse. track.com special election upon the filing of a qualifying recall petition signed July 2010 Page 2

Nevada Supreme Court Cases

Renown Health, Inc. v. Vanderford, 126 Nev. a concealed firearms permit is confidential, we Adv. Op. No. 24 (July 1, 2010) In this appeal, we conclude that the identity of the permittee of a consider whether hospitals owe an absolute non- concealed firearms permit, and any post-permit delegable duty to provide competent medical care records of investigation, suspension, or revoca- to their emergency room patients through inde- tion, are not declared explicitly to be confiden- pendent contractor doctors. Although the parties tial under NRS 202.3662 and are, therefore, settled in this matter, appellant Renown Health, public records under NRS 239.010. However, Inc., reserved its right to appeal the district court’s since post-permit records of investigation, sus- interlocutory order granting partial summary judg- pension, or revocation may contain information ment based on the imposition of a nondelegable from the application for a concealed firearms duty. A portion of the settlement remains contin- permit that is considered confidential under gent upon this appeal. We conclude that no such NRS 202.3662, we conclude that post-permit absolute duty exists under Nevada law, nor are we records of investigation of a permit holder, or at this time willing to judicially create one. Ac- suspension or revocation of a permit holder’s cordingly, we reverse the district court’s grant of permit, may be subject to redaction under NRS partial summary judgment insomuch as the district 239.010(3). court concluded that hospitals have such a non- delegable duty. We hold that Renown may be li- Ramirez v. State, 126 Nev. Adv. Op. No. 22 able for patient injuries under the ostensible (July 1, 2010) In this appeal, we consider agency doctrine that we previously recognized in whether the jury was properly instructed on the Schlotfeldt v. Charter Hospital of Las Vegas, 112 offense of second-degree felony murder by Nev. 42, 910 P.2d 271 (1996). means of child neglect or endangerment. For the reasons outlined in this opinion, we con- Reno Newspapers, Inc. v. Sheriff, 126 Nev. Adv. clude that the jury was not completely and accu- Op. No. 23 (July 1, 2010) In this appeal, we con- rately instructed as to the necessary elements of sider whether NRS 202.3662, which provides that second-degree felony murder and that the im- an application for a concealed firearms permit and proper instruction affected appellant Felicia Ra- the sheriff’s related investigation of the applicant mirez’s substantial rights. Accordingly, we re- are confidential, includes within its scope the iden- verse the district court’s judgment of conviction tity of the permittee of a concealed firearms permit and remand this matter for a new trial. and any records of suspension or revocation gener- ated after a permit is issued. Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. Adv. Op. No. 21 (June 24, 2010) This The Nevada Public Records Act considers original writ proceeding asks us to decide all records to be public documents available for whether a medical expert’s declaration under inspection unless otherwise explicitly made confi- penalty of perjury as provided in NRS 53.045 dential by statute or by a balancing of public inter- can satisfy the affidavit requirement stated in ests against privacy or law enforcement justifica- NRS 41A.071. We agree with the district court tion for nondisclosure. that it can and therefore deny writ relief.

Although NRS 202.3662 is plain and un- ambiguous in its declaration that an application for Page 3 The Public Lawyer

Law.com Happy Bar Day, Lawyers! Strike the Right Email Tone With 'ToneCheck' Today, July 27, is, in many states, the first day of the bar exam. Everybody and their mother Did you ever receive an email from opposing has written posts offering tips and advice to counsel and think, "Who does this S.O.B. think he those taking the test (see, e.g., Above the Law, is, talking to me this way? Call off the settlement, The Bar Professors, The Bar Exam Project it's ON now, sucker!" Meanwhile, the person you (these guys are real serious; they even give ad- now believe to be an S.O.B. of the highest order vice on how and when to pee during the thought he was just quickly wrapping things up. Bar)). Avoiding misunderstandings based on the tone of your emails has always been challenging. Some- So I'm not gonna do that. I'm no expert, and if anyone taking the bar finds him or herself times you spend three minutes on an email trying reading this blog on the way into the exam or during a lunch break, that person is probably to convey a simple thought, but the recipient pretty confident already. What I am going to do is to call upon all you lawyers to exercise reads your words as hostile, threatening, irra- your empathy muscles (assuming they haven't completely atrophied by this point): tional, happy or something else far different than

If you're at a Wendy's tonight, and the you intended. Not anymore, though! woman in front of you seems to be taking forever to order, consider that she might just be involuntarily thinking about the appropriate Now, according to Lawyerist, you can cleanse parties to join in a lawsuit should she find a finger in her chili. your outgoing email of any false "tones" through

See a guy sitting on a park bench, tears ToneCheck. It flags phrases and sentences that slowly streaming down his cheeks? His girlfriend didn't dump him, look hostile or angry (outside your specified he's just terrified he's going to fail. When you sit down next to him and "Tone Tolerance,") and offers substitutes. It also clap him on the shoulder, don't share your thoughts on the cruel flags lines that appear too "contented," e.g., nature of the female heart. Tell him you're sure he'd make a HELUVA overly cheerful when you are actually trying to lawyer, no matter what the Board of Law Examiners says. strike a tougher tone.

If you happen to be walking or driving past the Pasadena Convention Cen- ter or the Jacob K. Javits Conven- Check out the ToneCheck demo here. tion Center (where yours truly took the exam many moons ago) around 3:30 this afternoon, give a reassur- ing smile and wave to the hordes of Calif. Court Finds 'Red Light Camera' Photos zombie-like wannabe attorneys Inadmissible shuffling down the street and/or vomiting in the bushes. Hell, swing by with a dozen donuts for the kids. By now, many readers are probably familiar with You were once them. the "red light cameras" in some states that snap a Don't get me wrong, there's no shame in being photo of you and your car as you pass through a damned glad you're not taking the test today red light. The photo along with a traffic citation is and that chapter of your life is over. But have a then sent to the registered address of the vehicle little respect for the next generation. in the photo for you to pay. According to a recent July 2010 Page 4

Law.com opinion by the Superior Court of California, underlying source of that information. The per- however, the evidence produced by these red son or persons who maintain the system did not light cameras is inadmissible. testify. No one with personal knowledge testified about how often the system is maintained. No In People v. Khaled (App. Div. - July 22, 2010), one with personal knowledge testified about how the prosecution sought to prove that Khaled ran a often the date and time are verified. The custo- red light by introducing the red light photo along dian of records for the company that contracts with a "declaration that was intended to support with the city to maintain, monitor, store, and dis- the introduction of photographs purporting to perse these photographs did not testify. The per- show the appellant driving through an intersec- son with direct knowledge of the workings of the tion against a red light." camera-computer system did not testify. In addition, the court found that neither the Khaled, however, objected to the introduction of “official records exception” nor the “business the photographs and declaration as "inadmissible records exception” to the hearsay rule applied. hearsay, and violative of appellant’s confronta- Read the full opinion here (via the California tion rights." The trial court admitted the photo- Appellate Report blog) graphs "as business records, official records, and because a proper foundation for the admission Local Currencies Emerging in U.S. Towns as Economic Downturn Lingers had been made based on the submitted declara- tion." Khaled appealed. On appeal, the Superior An idea popular during the Great Depression ap- Court reversed the trial court, holding that the pears to be growing in popularity again today as lower court erred in admitting the photographs the effects of the financial crisis continue: local and the accompanying declaration over the currencies. Khaled’s hearsay and confrontation clause objec- tions. The American Banker reports that in May 2010, people lined up around the block in Ardmore, Specifically, the court stated that: Penn., to purchase "Downtown Dollars." Down- town Dollars are offered at a two-to-one ex- the photographs contain hearsay evidence con- change rate with the dollar, allowing consumers cerning the matters depicted in the photographs to instantly receive a 50 percent discount on pur- including the date, time, and other information. chases at participating merchants in Ardmore. The person who entered that relevant informa- Merchants then get the full value of the purchase tion into the camera-computer system did not when they exchange the Downtown Dollars for testify. The person who entered that information U.S. dollars. was not subject to being cross-examined on the Page 5 The Public Lawyer

Law.com

According to the American Banker, local cur- Blackburn ruled on Friday of last week that the rencies are perfectly legal and have gone in and act violates free speech. out of vogue for decades. Today, more than 200 such currency systems are operated in the U.S., The act provides that: operating in different ways: "Some systems use community banks as conduits to exchange dol- Whoever falsely represents himself or herself, lars for the local currencies and the reverse; in verbally or in writing, to have been awarded any other programs, banks and credit unions let cus- decoration or medal authorized by Congress for tomers pay a portion of loans and fees with the the Armed Forces of the United States, any of the local money. Still others don't involve banks at service medals or badges awarded to the members all." Large cities such as Detroit and Brooklyn, of such forces, the ribbon, button, or rosette of New York are now reportedly planning local any such badge, decoration,or medal, or any col- currencies, as well. orable imitation of such item shall be fined under this title, imprisoned not more than six months, or While the Downtown Dollars initiative has been both. a success, other local currencies seem to be los- ing steam. Steven Kyle, a professor at Cornell The act particularly hates it when people falsely University in Ithaca, N.Y., says the long- claim to have received a "distinguished-service running local currency system known as "Ithaca cross ... a Navy cross ... an Air Force ... a silver Hours" does not appear to be thriving. Indeed, star ... or a Purple Heart" medal, and provides for he says that in his 25 years in Ithaca, he's never extra prison time in such cases. seen an "Ithaca Hour" actually used. "Nobody only uses Ithaca Hours," he said. "To the extent The case decided by Judge Blackburn involved that you do, you are basically limiting your op- Rick Strandlof, who allegedly posed as Rick Dun- tions to spend that money that you have. It is, to can, "a wounded Marine captain who received a some extent, a disincentive." Purple Heart and a Silver Star." Prosecutors claim he used that persona to found the Colorado Veter- Court Finds 'Stolen Valor Act' That Prohib- ans Alliance and solicit funds for the organiza- its Lying About Military Medals Violates tion, the Denver Post reports. Strandlof wasn't Free Speech charged with stealing money meant for the veter- A federal judge in Denver ruled last week that ans group, however, and was only charged based the "Stolen Valor Act," which prohibits people on his "speech" alone. from falsely claiming they have been awarded military decorations and medals, is "facially un- Judge Blackburn rejected the argument that lying constitutional." U.S. District Judge Robert E. about having military medals dilutes their mean- July 2010 Page 6

Law.com ing and significance, stating that U.S. Rep. John Salazar, D., Colo., who intro- duced the legislation in 2005, said last week This wholly unsubstantiated assertion is, frankly, that "individuals who violate this law are those shocking and, indeed, unintentionally insulting to who knowingly portray themselves as pillars of the profound sacrifices of military personnel the the community for personal and monetary gain. Stolen Valor Act purports to honor. To suggest The Stolen Valor Act has been upheld by other that the battlefield heroism of our servicemen and courts and I am confident this decision will be women is motivated in any way, let alone in a overturned on appeal." compelling way, by considerations of whether a medal may be awarded simply defies my compre- Another defender of the statute from a veter- hension. ans' group said they will push for an appeal.

Page 7 The Public Lawyer

NINTH CIRCUIT CASES

Murrary v. Principal Financial Group, Inc., No. 09-16664 (July 27, 2010) The plaintiff in this Brownfield v. City of Yakima, No. 09-35628 case, Patricia Murray, is a “career agent” for the (July 27, 2010) Oscar J. Brownfield appeals the defendants, Principal Financial Group, Inc., district court’s grant of summary judgment in Principal Life Insurance Company, and Princor favor of the City of Yakima on his claims for Financial Services Corporation. Murray and other violations of the Americans with Disabilities Principal career agents sell Principal products that Act and the Family Medical Leave Act, and include a wide range of financial products and for First Amendment retaliation. We hold that services, including annuities, disability income, the City did not violate Brownfield’s rights un-

401(k) plans, and insurance. Murray sued Princi- der the ADA by requiring a fitness for duty pal for sex discrimination in violation of Title exam after he repeatedly exhibited emotionally VII. The only issue before us is whether Murray volatile behavior while serving as a police offi- is an “employee” within the meaning of that stat- cer, that his complaints regarding a coworker ute, or whether she should be regarded as an inde- with whom he shared duties did not address pendent contractor. Murray is entitled to the pro- matters of public concern, and that his FMLA tections of Title VII only if she is an employee. claim lacks merit. Exercising jurisdiction under Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 28 U.S.C. § 1291, we affirm. (9th Cir. 1999). July 2010 Page 8

NINTH CIRCUIT CASES

Mattel, Inc. v. MGA Entertainment, Inc., No. 09- the estate of Jason Scott Wilkinson brought an 55673 (July 22, 2010) Who owns Bratz? action against Torres and others, alleging that their constitutional rights under the Fourth and Barbie was the unrivaled queen of the fashion-doll Fourteenth Amendments were violated by Tor- market throughout the latter half of the 20th Cen- res’ use of deadly force. Torres moved for tury. But 2001 saw the introduction of Bratz, “The summary judgment on the issue of qualified Girls With a Passion for Fashion!” Unlike the rela- immunity, but the district court denied the mo- tively demure Barbie, the urban, multi- ethnic and tion, citing disputed issues of material fact. trendy Bratz dolls have attitude. This spunk struck Torres appeals, arguing that he is entitled to a chord, and Bratz became an overnight success. qualified immunity because his use of force Mattel, which produces Barbie, didn’t relish the was reasonable as a matter of law. We agree competition. And it was particularly unhappy and therefore reverse. when it learned that the man behind Bratz was its own former employee, Carter Bryant. Mack v. Kuckenmeister, No. 09-15290 (July 22, 2010) Darren Mack murdered his wife, Bryant worked in the “Barbie Collectibles” depart- Charla Mack, and shot the state court judge ment, where he designed fashion and hair styles overseeing their divorce proceedings before a for high-end Barbie dolls intended more for accu- final written divorce decree could be filed. Be- mulation than for play. In August 2000, while he lieving Darren Mack and Charla Mack had was still employed by Mattel, Bryant pitched his agreed to the terms of their divorce before idea for the Bratz line of dolls to two employees of Charla Mack’s murder, the Estate of Charla MGA Entertainment, one of Mattel’s competitors. Mack filed a motion in state court for the di- Bryant was soon called back to see Isaac Larian, vorce decree to be memorialized in an order the CEO of MGA. Bryant brought some prelimi- dated nunc pro tunc to a time before her death. nary sketches, as well as a crude dummy con- The Nevada district court entered a domestic structed out of a doll head from a Mattel bin, a relations order over Darren Mack’s objection. Barbie body and Ken (Barbie’s ex) boots. The Among other things, the DRO decreed that a Zoe, Lupe, Hallidae and Jade dolls in Bryant’s Quali- fied Domestic Relations Order should drawings eventually made it to market as Cloe, issue. Dar- ren Mack appealed to the Nevada Yasmin, Sasha and Jade, the first generation of Supreme Court, which affirmed the judgment. Bratz dolls. These appeals require us to determine whether In effect, Barbie captured the Bratz. The Bratz ap- state courts have subject matter jurisdiction to peal. decide that a state court issued domestic rela- tions order is a QDRO as defined by the Em- Wilkinson v. Torres, No. 09-35098 (July 6, 2010) ployee Retirement Income Security Act of On May 8, 2005, Defendant-Appellant Rick Torres 1974 (“ERISA”), 88 Stat. 832, as amended, 29 shot and killed Jason Scott Wilkinson as Wilkin- U.S.C. § 1001 et seq. We conclude that they do son was driving a stolen minivan in a residential and thus that the Nevada Supreme Court’s yard where the officers were on foot. Plaintiffs- QDRO determination in Mack v. Estate of Appellees Scott Wilkinson, Alisha Wilkinson, and Mack, 206 P.3d 98 (Nev. 2009), is entitled to Page 9 The Public Lawyer

NINTH CIRCUIT CASES full faith and credit. We reverse and remand with Lal v. State of California, No. 08-15645 (June instructions for the dis- trict court to direct Joan 25, 2010) Shelly Lal brought suit against the Mack to deposit the contested funds with the California Highway Patrol and officers Frank court, if she has not already done so, and to award Newman and Matthew Otterby for the shooting the funds to Randal Kuckenmeister, administrator death of her husband. The district court dis- of Charla Mack’s Estate. missed her case with prejudice under Federal Rule of Civil Procedure 41(b) for failure to Retired Employees Assn. of Orange County, Inc. prosecute when her attorney failed to meet v. County of Orange, No. 09-56026 (June 29, deadlines and attend hearings. When Lal later 2010) ursuant to Rule 8.548 of the California learned of her attorney’s behavior and the dis- Rules of Court, a panel of the United States Court missal of her suit, she hired a new attor- ney of Appeals for the Ninth Cir- cuit, before which and filed a motion for relief from judgment pur- this appeal is pending, requests that the Supreme suant to Federal Rule of Civil Procedure Court of California answer the following ques- 60(b)(6). The district court denied the motion. tion: We reverse. We hold, pursuant to Community Whether, as a matter of California law, a Califor- Dental Ser- vices v. Tani, 282 F.3d 1164 (9th nia county and its employees can form an implied Cir. 2002), that an attorney’s gross negligence con- tract that confers vested rights to health constitutes an extraordinary circumstance war- benefits on retired county employees. ranting relief from a judgment dismissing the Defendant-Appellee in this case contends that de- case for fail- ure to prosecute under Rule 41(b). cisions of the Supreme Court of California and the California Courts of Appeal support a conclu- Simmons v. Navajo County, No. 08-15522 sion that an implied contract to which a county is (June 23, 2010) We must decide, among other one party cannot confer such vested rights. Plain- issues, whether local jail per- sonnel, their su- tiff-Appellant contends the contrary. pervisors, and their county employer violated the Fourteenth Amendment due process rights Visa Intl. Serv. Assn. v. JSL Corp., No. 08-15206 of a pretrial detainee who committed suicide (June 28, 2010) She sells sea shells by the sea while in their custody. shore. That’s swell, but how about Shell espresso, Tide motor oil, Apple bicycles and Play- boy computers? We consider the application of anti- dilution law to trademarks that are also common English words.

Visa International Service Association sued JSL Corporation, through which Orr operates eVisa, claiming that eVisa is likely to dilute the Visa trademark. The district court granted summary judgment for Visa, and JSL appeals.

July 2010 Page 10

Krollontrack.com

Litigation Minute: Think Before You Post - A such as the person’s photograph, date of birth Look at the Rising Use of Social Site Evidence and family references, could be used to link the page to the person – even when pseudonymous Facebook has arguably succeeded in its mission to and anonymous profile names are used. “give people the power to share and make the world more open and connected.” Unfortunately, Social site evidence can wreak serious havoc on an ever-increasing number of people are starting to a case. With popularity of these sites on the rise, discover that sharing so much information is not companies, employees and litigators must re- always a good thing. Neither the Federal Rules of member to be: Evidence nor the Federal Rules of Civil Procedure specifically address social networking sites, but Aware: Information visible on social network- many courts nonetheless consider social site evi- ing sites is admissible as evidence, so think be- dence to be an admissible form of electronically fore you post. stored information (ESI). Proactive: Explore the increased security set- tings available on these sites, and consider sus- For now, courts consider private content contained pending activity or removing profiles when en- on social networking sites to be protected under gaged in litigation. the Stored Communications Act (SCA), making Savvy: Recognize the strategic value of these disclosure of this information difficult to compel. sites to your own case, and take advantage of In Crispin v. Christian Audigier, Inc., the District the information early. Court of California granted the plaintiff’s motion to quash subpoenas issued to sites including Face- United States Supreme Court Upholds book and MySpace on the grounds that they fall Search of Text Messages Sent on Employer- within the definition of an electronic communica- Issued Equipment tion service provider (ECS). Note that extending SCA protection precludes subpoenas issued in City of Ontario, California v. Quon, 2010 WL civil suits; however, it does not prevent the infor- 2400087 (U.S. June 17, 2010). In this appeal mation from being subpoenaed in a criminal inves- addressing an employer's search of an em- tigation. ployee's text messages, the United States Su- preme Court found the search to be reasonable, On the other hand, public content is fair game. but declined to issue a "broad holding concern- Savvy litigators have wasted no time using status ing employees' privacy expectations vis-à-vis updates, wall postings, pictures and other profile employer provided technological equipment." information to investigate witnesses, prospective Addressing the reasoning for the search (i.e., jurors and opposing counsel in an effort to help review of the text message transcripts), the develop well-tailored trial strategies. court found the City possessed a "legitimate in- terest" in ensuring employees were not forced to Courts across the country are also permitting the pay for overages out-of-pocket and that the City use of social site evidence at trial. Recently, the was not paying for personal communications. In Maryland Court of Appeals affirmed that the iden- regard to the search itself, the court found the tifying information in a MySpace personal profile, City's method of reviewing the text message Page 11 The Public Lawyer

Krollontrack.com transcripts to be reasonable as it was an "efficient mail. The defendants claimed the plaintiff failed and expedient way" to determine the nature of the to take reasonable precautions to prevent inad- overages. In support of this decision, the court vertent disclosure, citing the nearly 980 attor- noted the steps taken to reduce the search intru- ney-client communications that were produced, siveness, such as the restriction of the search date and argued the plaintiff failed the five-factor range and limitation of transcript review to mes- test. In response, the plaintiff argued the disclo- sages sent by the employee while on-duty. The sure occurred due to an undetermined error in court also discussed that the employee should the vendor's software. Despite citing numerous have understood or anticipated that it might be steps the plaintiff undertook to prevent disclo- necessary for the City to audit the pager messages sure and the existence of a clawback agreement, to determine whether the pagers were being ap- the court found the plaintiff failed to perform propriately used, or to assess the SWAT team's critical quality control sampling and concluded performance in emergency situations (the primary the plaintiff did not take reasonable steps to pre- purpose for the pager issuance). Finally, the court vent disclosure. As such, the efforts did not sat- determined the Ninth Circuit erred in suggesting isfy Fed.R.Evid. 502(b) and privilege was the City could have used "less intrusive means" to waived. In making its decision, the court also make the overage determinations and also held noted the e-mail was "a bell which cannot be that the search was not rendered unreasonable by unrung," which influenced the defendants' dis- the assumption that Arch Wireless violated the covery requests and deposition questions. Stored Communications Act by turning over the This ruling reiterates the importance of quality transcripts. when conducting e-discovery. Corporations must thoroughly vet a service provider's prod- In-House Impact: Clear policies addressing em- ucts and services through an open discussion on ployee use of network systems and technology is their strengths, weaknesses and offerings. This absolutely critical. These policies must be as in- case also highlights the need for an effective clusive and explicit as possible, and should be document review. Document review is an ex- updated periodically to reflect the adoption of pensive and time-consuming process, and en- new technology in the workplace. Employers gaging in smart technology and processes early must also take steps to educate employees of the on to condense data volumes will help identify company's right to monitor all communications, privileged documents and reduce the possibility including personal items, sent over company net- of inadvertent disclosure. works with work-issued equipment. Court Orders Reproduction of Certain Failure to Take Reasonable Steps to Prevent Documents in Native Format and Production Disclosure Results in Privilege Waiver of Inventory of Previous Computers Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 WL 1990555 (S.D.W.Va. May 18, 2010). In this Phillip M. Adams & Assocs., LLC v. Fujitsu insurance claim dispute, the defendants argued Ltd., 2010 WL 1901776 (D.Utah May 10, the plaintiff waived privilege following the inad- 2010). In this intellectual property litigation, vertent disclosure of privileged documents during one of the defendants sought reproduction of discovery, including an alleged "smoking gun" e- July 2010 Page 12

Krollontrack.com documents and e-mails in native format, docu- pursuant to the requests. The plaintiffs also de- ments from the plaintiff's previous computers and layed their responses, agreed to comply with documents from prior litigation. The plaintiff ar- requests at an unstated future time and abruptly gued that it never agreed to produce documents in amended their reply, leading to the defendants’ native format, and that producing documents from confusion and suspicion. Citing the plaintiffs' the old computers would be unduly burdensome "pattern of apparently calculated ambiguity," and costly. Addressing the first production dispute, the court ordered the plaintiffs to produce all the court ordered the plaintiff to reproduce the responsive documents, except for the properly documents relevant to one production request recorded privileged documents determined on a natively as it failed to object to the format specifi- good faith basis. The court further ordered the cation. However, no format specification was plaintiffs to make the original versions of cer- made in the defendant’s second request. As such, tain documents available for inspection. the court determined the plaintiff's production of documents per the ordinary course of business was Court Imposes Preclusion Sanctions for sufficient, and that the burden of reorganizing and "Grossly Negligent" Preservation Behavior labeling the production would likely outweigh the benefit. Turning to the computer issue, the court Jones v. Bremen High Sch. Dist. 228, 2010 WL ordered the plaintiff to produce an inventory of 2106640 (N.D.Ill. May 25, 2010). In this em- previous computers containing data described in ployment discrimination litigation, the plaintiff the defendant's request to determine if the created sought sanctions alleging the defendant failed to archives for these systems were adequate. Finally, preserve relevant documents and intentionally the court ordered the plaintiff to search documents concealed its document retention policy to hide related to a prior litigation matter, producing any its lack of compliance. Detailing the defen- document that is responsive, but not privileged. dant’s preservation efforts, the court found it "undisputed" that the defendant failed to place a Court Enforces Cooperation, Good Faith and litigation hold in effect when it learned the Responsibility in Discovery plaintiff filed charges in October 2007. Instead, the defendant directed just three employees – Kinetic Concepts, Inc. v. ConvaTec Inc., 2010 WL whose conduct was in question in the lawsuit - 1912245 (M.D.N.C. May 12, 2010). In this patent to search through their e-mail and cull out rele- infringement litigation, the defendants filed a mo- vant documents without supervision of outside tion to compel alleging the plaintiffs failed to re- counsel. Notably, all employees in the district spond to several production requests and defi- could permanently delete e-mails by "double- ciently produced some documents. The plaintiffs deleting" them from their computers, and the e- argued that they did not withhold or refuse to pro- mails would then be automatically erased from duce the relevant, responsive and non-privileged the backup system in thirty days. Despite find- documents sought. Reviewing the parties' commu- ing that the defendant "clearly breached its duty nications, the court determined that the plaintiffs to preserve relevant documents," the court de- often responded to the defendants' requests with termined the actions were not willful and de- boilerplate objections including the unilateral clined to impose an adverse inference instruc- claim that all relevant documents were produced tion. However, the court found the defendant’s Page 13 The Public Lawyer

Krollontrack.com

behavior grossly negligent, and precluded the de- supplied by the site’s individual users, the State fendant from arguing that an absence of discrimi- contended that the identifying information in natory statements evidenced that no such state- the page's content sufficiently linked the page to ments were made and allowed for additional the person because it included the person’s pho- depositions at cost to the defendant. tograph, date of birth, references to the person’s children and the defendant's nickname. Agree- Court Affirms Authentication of MySpace ing with the State, the court held that even with Page Attributed to Pseudonymous User pseudonymous and anonymous profile names, individualized content on social networking Griffin v. State, 2010 WL 2105801 (Md.App. sites "may lend itself to authentication of a par- May 27, 2010). In this criminal case, the defen- ticular profile page as having been created by dant appealed his murder and handgun convic- the person depicted in it." The court also denied tions, arguing the court erred in admitting a the defendant's argument regarding the prejudi- printed MySpace page into evidence, as it was not cial effect of the evidence, citing the trial court's properly authenticated and was prejudicial. Given redaction of irrelevant evidence from the profile that a MySpace personal profile contains content and the limiting instruction given to the jury.