Adverse Inference Instructions

News & Analysis as of

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

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

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

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?

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

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

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?

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

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

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

The E-Discovery Digest - October 2015

In This Issue: - Attorney-Client Privilege/Work Product Decisions: ..Decisions Protecting Against Disclosure ..Decisions Ordering Disclosure Other - Spoliation Decisions: ..Spoliation Sanctions...more

Proposed Changes to Federal Rules of Civil Procedure for ESI

With the widespread use of electronic communication methods, discovery is often the most onerous, time-consuming and costly aspects of litigation. Case law has established that a party has a duty to preserve information when...more

Court Allows Adverse Inference Instruction for Failure to Preserve Text Messages

On July 22, 2015, the District Court of the Southern District of California granted in part a motion from Defendants to give an adverse inference instruction to a jury regarding text messages from employees that were not...more

The 5th Amendment In Civil Practice: 3 Big Considerations

The right to remain silent and not testify at your own criminal trial is well known within the legal community and among the public. A defendant “taking the fifth” has been depicted in movies and television shows, and...more

Jan. 26 at the Faruqi sex harassment trial: NSFW!

PARENTAL ADVISORY: This is testimony in a sexual harassment case, so it’s necessarily NSFW (Not Suitable For Work. Unless you’re an employment lawyer or HR professional, in which case it’s AIADW (All In A Day’s Work).)...more

Pursuit of a “Smoking Gun” May Be a Recipe for Disaster

In the U.S District Court for the Northern District of Illinois, Judge Matthew F. Kennelly recently held that plaintiffs alleging price-fixing in the text messaging market were not entitled to an adverse inference after...more

Sanctions ordered against business for unintentional failure to protect evidence in anticipation of litigation

Following a broadening trend, the U.S. District Court for the Southern District of California recently held that a party is subject to sanctions – including an adverse inference instruction at trial – for negligently failing...more

The Dog Ate My Evidence: Document Destruction Policies And The Duty To Preserve

In This Issue: - The Duty to Preserve ..What triggers the duty to preserve? ..Who has a duty to preserve? ..What is the scope of the duty to preserve? - Litigation Hold Notices - Potential...more

What Is The Difference Between An Adverse Sanction And An Adverse Instruction?

In the world of discovery, including e-discovery, the production of evidence at trial is necessary to prove or defend a case....more

IP Update, Vol. 16, No. 2, -- February 2013

In This Issue: Patents - Supreme Court: State Court Has Jurisdiction over a Legal Malpractice Claim; Nothing Non-Obvious About Applying Pre-Existing Technology to the Internet; The Federal Circuit Is Not the...more

Hallmark Recoups Former Executive’s Severance Pay Seven Years after Separation Agreement

Seven years after entering into a separation agreement with one of its executives, Hallmark Cards, Inc. brought suit against the former employee, seeking a “full refund” of the $735,000 severance it paid her....more

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