Duty to Preserve

News & Analysis as of

Lawyer's Duty to Preserve Social Media Evidence

Lawyers must take “appropriate” steps to preserve their clients’ potentially relevant and discoverable social media evidence. That is the key take-away from an ethics opinion recently issued by the Philadelphia Bar...more

Limits to the Duty to Preserve

Although a suit against a particular officer of a corporation for sexual harassment would clearly trigger a litigation hold, what must counsel do about less obvious players in a more abstract dispute? The recent case of AMC...more

Sixth Circuit Analyzes Standards for Sanctions for Failing to Preserve Evidence

In Automated Solutions Corp. v. Paragon Data Systems, 2014 U.S. App. LEXIS 11918 (6th Cir. June 25, 2014), the United States Court of Appeals for the Sixth Circuit provided a close examination of the standards required for...more

Court Sanctions Employer $25K for Failing to Preserve Email After Notice of EEOC Charge

In Knickerbocker v. Corinthian Colleges, a trial court in Washington state sanctioned an employer because it failed to preserve evidence and issued an insufficient litigation hold after the employer received notice of EEOC...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

Love, But Don’t Leave, Your Litigation Holds

If your company is like many organizations, once a legal hold is set in motion, it becomes yesterday’s news…and is promptly forgotten about in favor of more pressing matters. After all, at its essence, a litigation hold is...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

PersonalWeb v. Google: Duty to Preserve Emails Began When Patent Was Acquired

PersonalWeb Technologies, LLC ("PersonalWeb") filed a patent infringement action against Google for infringement of its "Truenames" patents. Google filed a motion for sanctions based on a contention that PersonalWeb...more

Court Denies an Adverse Interference Absent Materiality (New York)

Cognex Corporation v. Microscan Systems, Inc., 2013 WL 6906221 (S.D.N.Y. Dec. 31, 2013). in this patent infringement suit, the defendants moved for sanctions for spoliation of a disk that was essentially destroyed...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

Top 5 Ediscovery Case Summaries - December 2013: Virginia: Improper Preservation and Untimely Disclosures Lead to Heavy Sanctions

Digital Vending Servs. Int’l, Inc. v. Univ. of Phoenix, Inc., 2013 WL 5533233 (E.D. Va. Oct. 3, 2013). In this intellectual property case, the defendants filed a motion for sanctions due to the plaintiff’s alleged...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

Top 5 Ediscovery Case Summaries - November 2013: Puerto Rico: Court Extends Duty to Preserve to Personal Email Accounts, Denies...

P.R. Tel. Co. v. San Juan Cable LLC, 2013 WL 5533711 (D.P.R. Oct. 7, 2013). In this antitrust case, the plaintiff sought an adverse inference instruction against the defendants, who allegedly failed to preserve...more

Top 5 Ediscovery Case Summaries - November 2013: Illinois: In the Seventh Circuit, the Duty to Preserve is Triggered When Party...

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013). In this multidistrict product liability litigation, the Plaintiffs’ Steering Committee (PSC) sought to compel...more

October 2013 Bonus Case Summaries: New York: Commonly Occurring Incidents Trigger a Duty to Preserve

Taylor v. City of New York, 2013 WL 4744806 (S.D.N.Y. Sept. 4, 2013). In this criminal law case, the plaintiff moved for sanctions for spoliation of video footage of a fight between prison inmates. ...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: Kansas: Court Refuses to Presume Prejudice Suffered by Deletion of ESI, Denies...

Herrmann v. Rain Link, Inc., 2013 WL 4028759 (D. Kan. Aug. 7, 2013). In this litigation brought under the Americans with Disabilities Act and related Kansas state law, the plaintiff sought sanctions for the defendants’...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

Sekisui Am. Corp. v. Hart: Judge Scheindlin’s Latest Footprint in Spoliation Case Law – Part 1

Judge Shira Scheindlin’s latest opinion, Sekisui v. Hart, marks a major development for the latest footprint in spoliation case law and is sure raise eyebrows among federal rule makers tasked with reworking Federal Rule 37....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

Top 5 Ediscovery Case Summaries – August 2013: New York - Negligence Alone is not Enough for Spoliation Sanctions

Sekisui Am. Corp. v. Hart, 2013 WL 2951924 (S.D.N.Y. June 10, 2013). In this employment law case, the court declined to impose any sanctions for the plaintiff’s negligent and perhaps intentional deletion of the email...more

Top 5 Ediscovery Case Summaries – August 2013: Colorado - Court References Defendant’s Previous Spoliation in Granting Sanctions

Hart v. Dillon Cos., 2013 WL 3442555 (D. Colo. July 9, 2013). In this wrongful termination case, United States Magistrate Judge David West held that the defendant acted in bad faith when it failed to preserve a relevant...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

Bridging the Gap in Ediscovery Best Practices

The Ediscovery Best Practice Gap - Kroll Ontrack’s 2012 Year in Review suggested that the total number of cases addressing sanctions decreased while courts spent more time scrutinizing search protocols. ...more

Top 5 Ediscovery Case Summaries – July 2013: California - No Relevance of the Evidence? No Sanctions

Cottle-Banks v. Cox Commc’ns, Inc., 2013 WL 2244333 (S.D. Cal. May 21, 2013). In this spoliation case, the plaintiff alleged that the defendant charged a rental fee to customers for use of “set-top-boxes”, even though...more

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