News & Analysis as of

Duty to Preserve

Court’s Inherent Sanction Powers – Not Rule 37(e) – Govern when Relevant Information (ESI included) is Intentionally Deleted

by Farrell Fritz, P.C. on

In Hsueh v. N.Y. State Dep’t of Fin. Servs., (No. 15 Civ. 3401 [PAC], 2017 WL 1194706 [S.D.N.Y. Mar. 31, 2017]) the Southern District imposed spoliation sanctions (specifically, an adverse inference) on the plaintiff in a...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

Craig Ball Says That Failure to Preserve Mobile Devices in Litigation is the “M” Word: eDiscovery Best Practices

by CloudNine on

In the latest post in his excellent Ball in Your Court blog, Craig Ball has some strong words for attorneys who fail to advise clients to preserve ESI from mobile devices when under a preservation duty....more

Brunswick Rail Wins Emergency Evidence Protection in Trade Secret Case Against Former Employees

by Zapproved Inc. on

OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017-EJD, 2017 U.S. Dist. LEXIS 2343 (N.D. Cal. Jan. 6, 2017). The court partially granted the plaintiff, OOO Brunswick Rail Mgmt., a motion for emergency evidence...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In a recent unpublished case, the Superior Court of New Jersey held that the Plaintiff in a CERCLA case had committed spoliation when, during the course of the remedial activity, it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

E-Discovery Lessons from the State Investigation of Alabama Governor Robert Bentley

by Exterro, Inc. on

From the beginning, e-discovery has mainly been the realm of corporate legal teams leveraging their knowledge of the e-discovery process along with technology to reach a “just and speedy” resolution to the matter as laid out...more

White House Allegedly Purges Electronic Devices after Order to Preserve Data: An E-Discovery Teachable Moment

by Exterro, Inc. on

According to an article published in the Independent, allegations have arisen surrounding “White House officials and members of Donald Trump’s transition team…reportedly ‘purging’ their electronic devices to avoid being...more

The Sedona Conference Issues Helpful and Important Commentary on the Proportionality Concept Applicable to Electronic Discovery

by Blank Rome LLP on

Action Item: The following set of six principles proposed by the Sedona Conference Working Group on Electronic Document Retention and Production should serve as practical guidance for litigants adhering to the proportionality...more

Finding of Exceptionality Leaves Unsuccessful Infringement Plaintiff Liable for Over $50 Million in Attorney Fees and Costs

Needless to say, a finding of exceptionality under 35 U.S.C. § 285 can have crippling consequences. Just ask Rembrandt Technologies, LP, which recently was slapped with an order to pay the prevailing defendants in a...more

"The E-Discovery Digest - March 2017"

The sixth 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

Spoliation of Truck Evidence Precludes Plaintiffs’ Use of That Evidence “As a Sword”: eDiscovery Case Law

by CloudNine on

In Below v. Yokohama Tire Corp., No. 15-cv-529 (W.D. Wisc. Feb. 27, 2017), Wisconsin District Judge William M. Conley, deciding on several pre-trial motions, granted (to an extent) the defendants’ motion for relief due to...more

Why Courts Should Not Go 'Over and Above' the Federal Rules to Impose Sanctions for Loss of ESI

by Pepper Hamilton LLP on

A recent case offers a cautionary tale of how courts may cite to the requirements of amended Federal Rule of Civil Procedure 37(e), which governs imposing sanctions for failure to preserve electronically stored information...more

ESI Discovery Best Practices, Part 7 – New FRCP One Year In – ESI Game Changer or Business As Usual?

by Butler Snow LLP on

I was recently reminded that it has been over a year since my last ESI-related blog. My excuse is that I wanted to allow the new Federal Rules of Civil Procedure addressing ESI to percolate before writing on the...more

An Exterro E-Discovery Adventure

by Exterro, Inc. on

My guess is that anyone who was alive in the 1980's has chosen their own adventure at least a few times. The Choose Your Own Adventure books were some of my favorites as a kid, an affordable and portable interactive fantasy...more

With No Intent or Duty to Preserve, Court Finds No Spoliation Occurred: eDiscovery Case Law

by CloudNine on

In Archer et. al. v. York City School District, et. al., No. 13-2826 (M.D. Pa., Dec. 28, 2016), Pennsylvania District Judge John E. Jones, III ruled that the plaintiffs had presented no evidence showing that the defendants...more

If the Scope of Discovery Changed and No One Paid Attention, Did the Scope of Discovery Change?

by BakerHostetler on

The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as...more

Forgetting about the Other Side of the Law is Criminal: eDiscovery Case Law

by CloudNine on

In our webcast on Wednesday titled What Every Attorney Should Know About eDiscovery in 2017, we covered (as we always do) several key cases that established eDiscovery best practices and trends (and a few with litigants...more

Critical Road Map for ESI in Litigation

by Farrell Fritz, P.C. on

It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation....more

Reasonable Steps to Preserve Evidence Yield More Than Selective Preservation

by Zapproved Inc. on

Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016). Limited sanctions were appropriate under Federal Rule of Civil Procedure 37(e)(1) where a...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

‘Cause You’ve Got Proportionality: Overview of The Sedona Conference Commentary on Proportionality in Electronic Discovery

Recently, The Sedona Conference, a research and educational institute, published its 2016 Public Comment Version of The Sedona Conference Commentary on Proportionality in Electronic Discovery. This is the third version of...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

BYOD – Another reasonable basis for discovery about discovery

I still remember typewriters. Heck, I still remember carbon paper, mimeographs and bag phones. Would a company, “back in the day”, have ever asked an employee, “hey, we need you to bring your own typewriter, desk,...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

Minimal Sanctions for a Minimal Showing of Prejudice

by Zapproved Inc. on

First Am. Title Ins. Co. v. Northwest Title Ins. Agency, No. 2:15-cv-00229 2016 U.S. Dist. LEXIS 118377 (D. Utah Aug. 31, 2016). The court denied the majority of sanctions a party sought for spoliation of evidence where...more

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