Duty to Preserve

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

Not an LOL Matter: Court Provides Guidance on Steps Litigants Should Take to Preserve Text Messages

We’ve all been there. Your friends throw you in the pool with your phone in your pocket. You repeatedly slice your finger on shards of glass from your phone’s shattered screen. Or, maybe you forget your phone isn’t waterproof...more

“Can I Throw Out Those Dust Covered Files?” Defensibility, Efficiency, and the Comprehensive Guide to E-Discovery Preservation

When I was in high school, I worked for a family-owned office supply store, one of the last of the local businesses left on main street in the small Midwestern town where I lived. It was a frustrating job most of the time...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

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was...more

Medical Litigation Newsletter - October 2016

When a Defensible Claim Goes Sour: Defending Spoliation of Evidence Claims - Let us assume you have a credible defense to the negligence allegations as to the care and treatment provided by a doctor, hospital, medical...more

Electronic Discovery Preparedness Checklist

While your organization may not regularly be involved in costly or complicated litigation, there is always the potential for this to arise. Additionally, you may work in an industry that is heavily regulated and subject to...more

Here’s the Story of a Lovely Merger: E-Discovery Preparedness During the M&A Process

When I think of mergers, I can’t help but hum the tune to the Brady Bunch theme and imagine the grid of squares, each with the smiling face of that lovely lady and her daughters, and the man named Brady and his sons. If only...more

Delaware District Court Interprets Amended FRCP

The first Delaware opinion that has been issued that addresses either sanctions or proportionality under the new Federal Rules is GN Netcom, Inc. v. Plantronics, Inc. Plaintiff GN Netcom, Inc. (“GN”) filed a motion for...more

Federal Court Provides a $3 Million Reason to Comply with Duty to Preserve ESI

After years of decisions, the issues surrounding the preservation of electronically stored information (ESI) seem almost old hat. It is well known that, upon notice of a claim or commencement of litigation, a party needs to...more

Premises Camera Surveillance Part 1: When Does the Duty to Preserve Video Evidence Arise?

The effective and proper use of premises camera surveillance is just the first step in whether or not video evidence will be used in litigation. This first article in a series considers when a duty to preserve video...more

$3 Million Spoliation Sanction Despite Company’s Litigation Hold

Manufacturers involved in litigation must properly preserve electronically-stored information (“ESI”) or potentially face daunting sanctions. A recent antitrust case, however, demonstrates that lessons—multi-million dollar...more

E-Discovery Update: Does Authority Always Win?

John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now...more

Party’s Willful Destruction of Data Did Not “Optimize” the Case for Dismissal

Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016). Where a plaintiff “willfully [ran] a computer program that she knew, given her computer expertise, would destroy at least some...more

Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware - Part 1

In re: ISN Software Corporation Appraisal Litigation, C.A. No. 8388–VCG, Oral Argument on Petitioners Motion to Compel and Partial Rulings of the Court, April 27, 2015. In this fifth motion to compel before Vice...more

The Failure to Issue a Legal Hold Can Cause a Case to Crash and Burn

Bruner v. Am. Honda Motor Co., No. 1:15-00499-N, 2016 U.S. Dist. LEXIS 62810 (S.D. Ala. May 12, 2016). Where a defendant had never initiated a legal hold and had been continuously deleting e-mails since litigation began,...more

Spoliation Claims Are Not a Recreational Vehicle to Be Raised at Any Time in a Case

LaFerrera v. Camping World RV Sales of Birmingham, No. 15-00473 (N.D. Ala. Mar. 21, 2016). Relying on state law, the court rejected a request for spoliation sanctions included as part of a motion for summary judgment...more

E-discovery and the Duty to Preserve

If you’re involved in a suit in federal court, then the Federal Rules of Civil Procedure apply to you. Rule 26(b) provides, among other things, that parties may obtain discovery regarding any non-privileged matter that is...more

Yes, Counselor, You Argued That Below, But No, It Is Not Preserved

Don’t assume that just because your argument is clearly reflected somewhere in the record that it is preserved for appeal. Often for purposes of preservation, the procedural context for the argument is just as important as...more

Quirky Question #281: Deploying the DTSA

Question: We believe our former employee recently stole some of our trade secrets and went to a competitor. Can we rely on the Defend Trade Secrets Act to bring suit in federal court?...more

Zapproved’s Brad Harris on Fundamentals of a Good Evidentiary Preservation Plan

The duty to preserve evidence is well established; litigants must take reasonable steps to ensure information is not deleted or altered once the duty arises. The duty to preserve applies equally to both plaintiff and...more

Litigation Holds and Spoliation Issues

When the need arises, a litigation hold should be implemented quickly and effectively to avoid the inadvertent destruction or overwriting of potentially responsive data. The time to implement a litigation hold may be when it...more

Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware

2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as...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

Preservation of ESI Under Rule 37(e)

In the short amount of time since the amendment to Rule 37(e) of the Federal Rules of Civil Procedure, courts have confronted the task of applying the parameters of this newly revised Rule. Importantly, in contrast to the...more

71 Results
|
View per page
Page: of 3
JD Supra Readers' Choice 2016 Awards

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
×