News & Analysis as of

Adverse Inference Instructions

Court Says Rule 37(e) Doesn’t Apply When Recording Was Intentionally Deleted: eDiscovery Case Law

by CloudNine on

In Hsueh v. N.Y. State Dep’t of Fin. Services, No. 15 Civ. 3401 (PAC) (S.D.N.Y. Mar. 31, 2017), New York District Judge Paul A. Crotty relied upon inherent authority to impose sanctions and determined “that an adverse...more

Sanctions Granted against Defendant for Loss of ESI on Laptop and Hard Drive, Denied for iPhone: eDiscovery Case Law

by CloudNine on

In TLS Management and Marketing Services, LLC v. Rodriguez-Toledo, et. al., No. 15-2121 (D. P.R., Mar. 27, 2017), Puerto Rico Magistrate Judge Bruce J. McGiverin partially granted and partially denied the plaintiff’s motion...more

Disposal of Contamination = Disposal of Evidence. Be Careful What You Throw Away!

by Snell & Wilmer on

In a recent unpublished case, the Superior Court of New Jersey held that the Plaintiff in a CERCLA case had committed spoliation when, during the course of the remedial activity, it disposed of various contaminated materials....more

After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: eDiscovery Case Law

by CloudNine on

In Ensing v. Ensing, et. al., No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders...more

Decision of the Paris Court of Appeal on "adverse inferences" doctrine

by White & Case LLP on

The Paris Court of Appeal has issued an important decision endorsing an arbitral award based, in part, on the "adverse inferences" principle in the IBA Rules on the Taking of Evidence in International Arbitration (the "IBA...more

2016 eDiscovery Case Law Year in Review, Part 4

by CloudNine on

As we noted yesterday, Tuesday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to...more

2016 eDiscovery Case Law Year in Review, Part 3

by CloudNine on

As we noted yesterday and Monday, eDiscovery Daily published 74 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases! Yesterday, we looked back at cases related to...more

The Rise of Spoliation Claims In Premises Liability Cases

by Reminger Co., LPA on

“Spoliation” generally includes the destruction of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. See Owner-Operator Indep. Drivers Ass’n v....more

Plaintiff’s Intentional Deletion of Emails to Competitors Leads to Order to Produce Gmail Account: eDiscovery Case Law

by CloudNine on

In Cohn et. al. v. Guaranteed Rate, Inc., No. 14-9369 (N.D. Ill., Dec. 8, 2016), Illinois District Judge John Robert Blakey granted in part and denied in part the defendant’s motion to compel discovery, for spoliation...more

Magistrate’s Decision Regarding Spoliation Is Affirmed

by Morris James LLP on

Magistrate’s May 20, 2016 opinion regarding spoliation is affirmed. Plaintiff’s objections to the magistrate’s opinion granting in part and denying in part plaintiff’s motion for sanctions and substantive relief due to...more

Was Spoliation Intentional? Court Will Let Jury Decide: eDiscovery Case Law

by CloudNine on

In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction...more

Defendant Sanctioned for Spoliation of Physical Evidence, But Not ESI: eDiscovery Case Law

by CloudNine on

In Reed v. Kindercare Learning Centers et. al., No. 15-5634 (W.D. Wash., Nov. 17, 2016), Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with...more

With No Proof of Duty to Preserve or Bad Faith, Plaintiffs’ Request for Sanctions is Denied: eDiscovery Case Law

by CloudNine on

In Reyes et. al. v. Julia Place Condominiums Homeowners Association, Inc., et. al., No. 12-2043 (E.D.L.A., Oct. 7, 2016), Louisiana District Judge Carl J. Barbier, in denying the plaintiffs’ request for sanctions, stated that...more

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

by CloudNine on

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the...more

Slip and Fall Case Leads to Sanctions Faceplant

by Zapproved Inc. on

Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016). The appellate court affirmed the lower court’s denial of an adverse inference instruction where the plaintiff did not establish that the additional video...more

"The E-Discovery Digest - October 2016"

The fifth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney client privilege and work-product doctrine, spoliation, and discovery responses. Please see...more

"The E-Discovery Digest - June 2016"

The fourth edition of The E-Discovery Digest focuses on recent decisions addressing the scope and application of the attorney-client privilege and work-product doctrine, spoliation, cost shifting and other e-discovery...more

Can Amended Federal Rule of Civil Procedure 37(E) Rewrite Plaintiffs' Spoliation Playbook?

by Pepper Hamilton LLP on

The application of Rule 37(e) may limit spoliation litigation to issues relevant to underlying claims and defenses. A key component in plaintiffs’ playbook when facing a corporate defendant is to attempt to try cases...more

E-Discovery Update: Changes to Rule 37’s Failure-to-Preserve-ESI Sanctions Impact Recent Rulings

by McGuireWoods LLP on

For years, companies have battled different sanction standards for the failure to preserve documents. This led to over-preservation, where, to avoid accusations of “negligent” failure, companies preserved every shred of...more

Steps Companies May Take to Comply with Revised Document Retention Requirements

by White & Case LLP on

Federal Rule of Civil Procedure 37(e) sets forth the requirements for the retention of electronically stored information ("ESI") and the corresponding sanctions available to remedy the loss of ESI. New amendments to Rule...more

The E-Discovery Digest - February 2016

This is the third edition of The E-Discovery Digest, a periodic publication on notable decisions relating to key discovery topics. It is designed to keep clients up to date on the evolving state of the law regarding discovery...more

E-Discovery and Information Management: New Federal Rules Provide Welcome Relief to Businesses Facing Electronic Document...

A recent amendment to Federal Rule of Civil Procedure 37(e) abrogates a series of federal court decisions that imposed harsh "adverse inference" sanctions on litigants that failed to initiate litigation holds to preserve...more

Can Plaintiffs Seek an Adverse Inference from Defendant Corporations' Privilege Assertions?

by McGuireWoods LLP on

The attorney-client privilege benefits society by encouraging clients' frank disclosure to their lawyers, but it undeniably conceals highly relevant communications. Surprisingly, only a few courts have addressed plaintiffs'...more

NYCAL Presiding Judge Rules Manufacturer Should Have Reasonably Anticipated Asbestos Litigation 10 Years Before First Lawsuit

by Wilson Elser on

On November 5, 2015, Judge Peter H. Moulton, presiding judge over the New York City Asbestos Litigation (NYCAL), ruled in Warren v. AmChem Products, et al., 190281/2014, that J-M Manufacturing Company, Inc., was subject to...more

The Top Ten Things Every Commercial Litigator Must Know About the Fifth Amendment

by Fish & Richardson on

Invoking the Fifth Amendment privilege is not just for scenes from Law & Order or Better Call Saul. These days commercial cases, especially those involving individual defendants, are commonly filled with claims that have...more

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