Destruction of Evidence

News & Analysis as of

High Court Divided: Is A Fish A Tangible Object?

Gulf fisherman John Yates was cited by a federally-deputized Florida Fish & Wildlife officer for having caught a few red grouper that were about an inch under the 20” minimum limit at the time (they’d have been legal under...more

Supreme Court Rejects the Government’s “Fishy” Interpretation of Sarbanes-Oxley Obstruction Statute

On February 25, the United States Supreme Court issued a decision in Yates v. United States.1 This case involved the interpretation of Title 18, United States Code, Section 1519, a statute that was added as part of the...more

Supreme Court Decides Yates v. United States

On February 25, 2015, the U.S. Supreme Court decided Yates v. United States, No. 13-7451, holding that fish are not “tangible objects” within the meaning of 18 U. S. C. §1519, a federal law providing that a person who...more

Supreme Court Interprets Sarbanes-Oxley Evidence Destruction Provisions

We now know that Sarbanes-Oxley does not apply to fish . . . While conducting an offshore inspection of a commercial fishing vessel in the Gulf of Mexico, a federal agent found that the ship’s catch contained...more

Deleted E-Mails? What Happens to the CCJEF Litigation Now?

This one should be pretty obvious, but for the record, it’s never a good idea to destroy potential evidence. For better or worse, however, it looks like the possible destruction of evidence will now be the focal point...more

The Fish Tale and the Supreme Court: How Applying Sarbanes-Oxley to Missing Grouper Has Raised Questions of Overcriminalization

The Issues - On November 5, 2014, the Supreme Court heard arguments in Yates v. United States of America. In layman's terms, the issue is whether an Enron-era antishredding provision of the Sarbanes-Oxley Act was...more

Though Destruction of Evidence was Egregious, Lesser Sanctions Ordered (New York)

Hawley v. Mphasis Corp., 2014 WL 3610946 (S.D.N.Y. July 22, 2014). In this employment discrimination case, the plaintiff moved for sanctions due to defendant’s alleged discovery violations. The plaintiff claimed that...more

Sarbanes-Oxley Casts a Wide Net, Literally

Congress passed Sarbanes-Oxley in 2002 to deal with the accounting scandals that resulted in the downfall of the likes of Enron, Tyco, Worldcom, Arthur Andersen, and others. In its October Term 2014, the Supreme Court will...more

Status Updates - August 2014 #2

..May a lawyer ethically instruct a client to delete potentially damaging information from a client’s Facebook page? According to a new ethics opinion from the Philadelphia Bar Association, yes, so long as the information is...more

Texas Supreme Court Rules on Spoliation Instructions

The court holds that, with rare exception, intent is required for spoliation instructions in Texas. On July 3, the Texas Supreme Court issued its ruling in Brookshire Brothers, Ltd. v. Aldridge, holding, with a narrow...more

Texas Supreme Court Clarifies Spoliation Under Texas Law

After years of awaiting clarity from the Supreme Court of Texas regarding spoliation under Texas law, the Supreme Court issued a significant decision that will shift how Texas state courts handle civil jury instructions...more

Halifax Health Gets In More Hot Water

You probably didn’t think Florida’s Halifax Health could make its situation any worse. After all, only two months ago Halifax agreed to pay $85 million to settle just the first half of a Medicare fraud case. That still...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

The Long Arm of E-Discovery Stretches Overseas

Earlier this year, Kazuaki Fujitani, the general manager of a Japanese company’s sales division, pled guilty to obstruction of justice for destroying numerous e-mails and other documents in a federal investigation by the...more

The Civil Rules Committee Goes Back to the Drawing Board on Rule 37(e)

Calling its prior proposal “too restrictive,” the Advisory Committee on Civil Rules published a substantially revised version of Federal Rule of Civil Procedure 37(e) in the agenda for its April 10-11 meeting. The Committee...more

Consumer Group Encourages AG Probe into J&J Document Destruction

The U.S. Attorney General’s office says it is reviewing an open letter submitted by a consumer group encouraging a criminal probe into the destruction by Johnson & Johnson (J&J) of pelvic mesh litigation documents....more

Court Denies Sanctions Without Evidence of Timing of Destruction (Illinois)

Sokn v. Fieldcrest Cmty. School Dist. No. 8, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014). In this discrimination lawsuit, the plaintiff was the only female principal in the defendants’ school district. The plaintiff...more

Gross Negligence Enough for Adverse Inference Instruction

In 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued five landmark decisions, which have since shaped the landscape of electronic discovery and document preservation. ...more

Top 10 Compliance Trends For 2014

As 2013 wraps up, it is that time of year again when we dust off the compliance crystal ball and take a look at what might be in store for 2014: 1. Executive Order 13627 on Trafficking in Government Contracts —...more

FCPA Compliance and Ethics Report-Episode 31-the FCPA Year in Review, Corporate Enforcement Actions [Video]

In this episode, I review the corporate FCPA enforcement actions of 2013. ...more

My (Google) Hangout with the Ediscovery Experts

What happens when seven of the smartest, most articulate ediscovery professionals come together for an hour talk about—quite frankly—whatever they want? Just yesterday Josh Gilliland, Samir Mathur, Barry Murphy, Ralph...more

October 2013 Bonus Case Summaries: Louisiana: Guilty Plea to Destruction of Evidence Results in Soft Treatment

United States v. Halliburton Energy Services, Inc., No. 2:13-cr-00165-JTM-KWR (E.D. La. Sept. 19, 2013). In this criminal law case, the Justice Department accepted the defendant’s guilty plea for “unauthorized destruction...more

Fun With SnapChat Spoliation and Preservation

Imagine an app that lets you send 10-second picture messages… and then the pictures get deleted forever. Welcome to SnapChat, the app allegedly used by Wall Street moguls for insider trading and a platform for new fashion...more

Top EDiscovery Case Summaries - October 2013: New York: Court Allows Presumption of Prejudice, Overturns Previous Order Denying...

Sekisui Am. Corp. v. Hart, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In this case, Judge Shira Scheindlin reversed an earlier order that denied spoliation sanctions for the plaintiffs’ deletion of ESI. The underlying breach...more

Sekisui Am. Corp. v. Hart: Judge Scheindlin’s Latest Footprint in Spoliation Case Law – Part 2

Part II: The Implications What level of culpability should trigger sanctions? Negligence? Gross negligence? Bad faith? What arises to the level of prejudicing the non-producing party’s case? This case brings to light...more

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