Duty to Preserve

News & Analysis as of

Court Allows Deposition of Computer Forensics Specialist to Aid in Discovery (Florida)

Procaps S.A. v. Patheon Inc., 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015). The plaintiff failed to place a litigation hold on its documents which resulted in an inadequate search for responsive information in discovery....more

Court Extends Proportionality Principle to Duty to Preserve

In Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR (N.D. Cal. Oct. 29, 2014), United State Magistrate Judge Donna M. Ryu granted the plaintiff’s motion for permission to no longer preserve computer...more

ITC Affirms Joint and Several Liability of Counsel for Payment of Monetary Sanctions Based on Client's Spoliation of Evidence

On April 30, 2015, the International Trade Commission issued the public version of its opinion reviewing ALJ Thomas B. Pender’s Initial Determination in Investigation No. 337-TA-883, finding the Respondents in default due to...more

Effort to Hide Facebook Evidence by Deactivating Account Ends Badly for Louisiana Man

As social media has become ubiquitous, courts are wrestling with more discovery disputes involving social media accounts. In a recent case, Crowe v. Marquette Transportation Co. Gulf-Inland, LLC, the plaintiff...more

Court Redefines the Legal Standard for Preservation Obligations (4th Circuit)

Blue Sky Travel & Tours, LLC v. Al Tayyar, 2015 WL 1451636 (4th Cir. Mar. 31, 2015). In this breach of contract case, the defendants failed to produce relevant documents despite a court order, and sanctions were imposed....more

Court-Ordered Seizure of Defendants’ Records in Separate Case Enough to Avoid Sanctions (New York)

Perez v. Metro Dairy Corp., 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2014). In this class action, the plaintiffs sought sanctions for the defendants’ failure to produce certain relevant employment documents and records. The...more

Court Finds No Spoliation after Deletion of Emails during Routine Audit (Missouri)

Gladue v. Saint Francis Medical Center, 2015 WL 1359091 (E.D. Mo. Mar. 24, 2015). In this employment case, the plaintiff sought sanctions for the spoliation of deleted emails. After the plaintiff had been terminated from...more

U.S. Court’s Power to Compel Compliance with U.S. Discovery Arises Only with Jurisdiction (Ohio)

Lunkenheimer Co. v. Tyco Flow Control Pacific Party Ltd., 2015 WL 631045 (S.D. Ohio Feb. 12, 2015). In this international civil case, an intervenor/counter-defendant sought to compel compliance with a discovery order for...more

U.S. Supreme Court Finds That SOX’s Anti-Shredding Provision Does Not Apply To Fish

When one thinks of the Sarbanes-Oxley Act of 2002 (SOX)—a law created to restore trust in the financial markets following the collapse of Enron—red grouper is not usually the first thing that comes to mind. Nevertheless, the...more

Legal Ethics and Social Media: What Pre-Litigation Advice May an Attorney Provide to His or Her Client?

When meeting with your client about a matter that will likely result in litigation, what advice can you give your client about privacy settings and removal of information from social media in the pre-litigation setting? The...more

Planning for E-Discovery

Federal courts in California have developed new rules and guidelines. The rules of civil procedure are supposed to be "construed and administered to secure the just, speedy, and inexpensive determination of every action...more

2014 E-Discovery Year in Review - "Courts continued in 2014 to endorse the use of technology to improve the efficiency and...

2014 demonstrated that management and discovery of electronic information continues to be a challenging issue in litigation. A review of 2014 court decisions also underscores the importance of litigation hold notices,...more

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

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