Civil Procedure Labor & Employment Electronic Discovery

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Employer Sanctioned for Failing to Issue a Litigation Hold After Notice of EEOC Charge

In a case from the United States District Court for the Western District of Washington, an employer and its attorneys were sanctioned for spoliation of evidence caused by the employer’s failure to issue a litigation hold and...more

Thorny Issues to Consider Before Buying Into BYOD

A salesperson and her boss are attending a conference at a hotel. Their goals are twofold: learning the latest industry trends and mingling with clients to generate business. After the sessions end, they invite two potential...more

Privilege Does Not Cover Communications With Outside Counsel Relating To Business-Related Advice, E.D.N.Y. Holds

Koumoulis v. Independent Financial Marketing Group, Inc., No. 10-CV-0887 (E.D.N.Y Jan. 21, 2014): A federal district court judge narrowly applied the attorney-client privilege and work-product doctrine by granting the...more

Court of Appeals Dismisses Plaintiffs for Failure to Preserve and Increases Defendant’s Taxable Costs (5th Circuit)

Moore v. Citgo Co., LP, 735 F.3d 309 (5th Cir. 2013). In this appellate Fair Labor Standards Act litigation, the class of plaintiffs sought overtime pay for work hours that had been misclassified by the defendant...more

Facebook Fables in Employment Litigation

In recent years, employers have become familiar with navigating social media from a human resources perspective. These same issues are now making their way through the courts, and the rulings issued can serve as guideposts...more

Top 5 Ediscovery Case Summaries – September 2013: Michigan - Data Deletion May Be Sanctioned – but Only When Litigation Is...

Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, 2013 WL 3983230 (E.D. Mich., Aug 1, 2013) In this employment law case, the defendants were sanctioned $35,000 for the spoliation of over 270,000 files. The...more

First Financial Bank v. Bauknecht: Creative Cost-Shifting in Discovery of ESI

On July 23, 2013, United States Magistrate Judge Byron Cudmore granted in part and denied in part plaintiff’s motion to compel in First Financial Bank v. Bauknecht, an action based on alleged wrongful conduct by Scott...more

Top 5 Ediscovery Case Summaries – August 2013: Pennsylvania - Proportionality Must Be Considered for Spoliation Sanctions

PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013). In this employment law case, the plaintiff appealed a trial court’s denial of motion for sanctions against the defendants who allegedly erased...more

Bring Your Own Device (BYOD) and the Future of Ediscovery

In an instant, your Facebook presence is transformed…instead of uploading those photos from that party last night, you click “like” on that distant family member’s baby pictures. Instead of angrily posting on that political...more

Top 5 Ediscovery Case Summaries – July 2013: Illinois - Sanctions Granted for Reckless Spoliation of Data

Pillay v. Millard Refrigerated Serv., Inc., 2013 WL 2251727 (N.D. Ill. May 22, 2013). In this Americans with Disabilities Act case, the plaintiff sought sanctions in the form of an adverse jury instruction for the...more

Top 5 Ediscovery Case Summaries – July 2013: Illinois - Sanctions Granted for Reckless Spoliation of Data

Pillay v. Millard Refrigerated Serv., Inc., 2013 WL 2251727 (N.D. Ill. May 22, 2013). In this Americans with Disabilities Act case, the plaintiff sought sanctions in the form of an adverse jury instruction for the...more

Top 5 Ediscovery Case Summaries – July 2013: New York - Minimal Court Oversight Required for Predictive Coding Protocol

Gordon v. Kaleida Health, 2013 WL 2250579 (W.D.N.Y. May 21, 2013). In this action brought under the Fair Labor Standards Act, the plaintiffs motioned for a court order requiring the parties to meet and confer on the...more

Third Circuit Invalidates President Obama’s Appointment Of Former NLRB Member Becker; Becomes Second Appellate Court To Rule NLRB...

In late January, the D.C. Circuit ruled in Noel Canning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National...more

Top 5 Ediscovery Case Summaries – April 2013: Puerto Rico - “Careless” Deletion of ESI Warrants Exclusion of Evidence, Adverse...

E.E.O.C. v. Ventura Corp, Ltd., 2013 WL 550550 (D.Puerto Rico Feb. 12, 2013). In this case, the plaintiffs sought sanctions against the defendant for allegedly destroying relevant evidence of discriminatory hiring practices...more

EEOC Sanctioned for Failing to Produce Class Claimants' Social Media ESI and Other e-Discovery Misconduct

In EEOC v. The Original HoneyBaked Ham Company of Georgia Inc., 2013 U.S. Dist. LEXIS 26887 (D. Colo. Feb. 27, 2013), the U.S. District Court for the District of Colorado sanctioned the Equal Employment Opportunity Commission...more

Court Allows Discovery of Private Posts on Facebook

Facebook is a seemingly endless source of juicy intel. As such, I always recommend that users lock down their privacy settings if they want to keep “the man” out of their timeline. Public posts are fair game for employers...more

Don’t Forget Social Media During Discovery

Social media continues to be important in litigation, especially in cases where the plaintiff alleges damages for emotional distress or mental injury. Courts are increasingly allowing discovery of the plaintiff's social media...more

Second Circuit Holds That Failure To Issue A “Litigation Hold” Will Not Result In Per Se Sanctions And Clarifies Title VII...

Chin v. Port Authority of New York & New Jersey, No. 10-cv-1904 (2d Cir. July 10, 2012): The Second Circuit Court of Appeals rejected case law holding that the failure to institute a “litigation hold” will per se result in...more

In the Slick of It: Will BP Go Down With an Employee Who Purportedly Deleted Deepwater Horizon Oil Flow-Rate Related Text...

While the 24-hour news cycle has long left behind the Deepwater Horizon explosion on April 20, 2010 that resulted in 11 deaths and the largest oil spill in United States history, the government continues to investigate...more

How to Mismanage E-Discovery in a Workplace Investigation: A gender discrimination case demonstrates the need for constant...

Originally published on i-Sight.com's blog: “How to Mismanage E-Discovery in a Workplace Investigation.” There’s no such thing as passing the buck when it comes to e-discovery. Although attorneys may assume that they can...more

Five Quick Tips on Handling eDiscovery in Employment Litigation

Employment litigation can be expensive and time-consuming, especially due to the increased importance of and focus on ediscovery (the grab-bag of legal and logistical issues associated with the management, identification,...more

Failure to Act Promptly in Rectifying an Inadvertent Disclosure May Waive Privilege

The Plaintiffs in this action are Assistant Store Managers who are pursuing a collective action under the Fair Labor Standards Act (“FLSA”) for overtime wages against Duane Reade, Inc. and Duane Reade Holdings, Inc. (“Duane...more

Socially Aware: The Social Media Law Update - Vol. 2, Issue 5 - October 2011

In this issue: NLRB Report Provides Guidance to Employers on Social Media Issues; Rough Waters: Repeat Infringer Policies and the DMCA Safe Harbors; What Every Company Should Know About E Discovery and Social Media; CDA...more

Unintentional Disclosure - Employee Communication To Counsel

Consider the following hypothetical: After an employee files a lawsuit against her employer, the employer copies the contents of her workplace computer for possible use in defending the lawsuit, and provides copies to its...more

Beyond Dispute - Inaugural Issue - August 2011

In this issue: * Decoding E-Discovery: 7 Things to Know about E-Discovery * Second Circuit Affirms the Grant of a Preliminary Injunction on Non-Compete Agreement * Rules of the New York Court of Appeals for the...more

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