News & Analysis as of

FRCP 37(e)

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

Should Failing to Issue a Litigation Hold Be Considered Intent to Deprive?: eDiscovery Best Practices

by CloudNine on

A lot has been discussed about the most recent changes to the Federal Rules, especially with regard to Rule 37(e) and the requirement of the intent to deprive standard to apply more serious sanctions. But, what activities...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

Case Law: You Can’t Spoliate Evidence That You Don’t Possess

by Zapproved Inc. on

HCC Ins. Holdings, Inc. v. Flowers, No. 1:15-cv-3262-WSD, 2017 WL 393732 (N.D. Ga. Jan. 30, 2017). In this case, the court denied a motion for sanctions because the plaintiff failed to prove that the defendant ever...more

‘Very Poor Practice’ in Preservation Offset by the Defendant’s Choice Not to Review

by Zapproved Inc. on

Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, No. 5.14-CV-5262 (W.D. Ark. Jan 19, 2017). In this long-running contract case, the defendant, Cuker Interactive, requested sanctions against the plaintiff, Wal-Mart Stores...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

Exterro Releases Third Annual Federal Judges Survey: E-Discovery Advice for Becoming a Better Attorney

by Exterro, Inc. on

Today Exterro announced the results of the Third Annual Federal Judges Survey: E-Discovery Advice for Becoming a Better Attorney. Twenty-two (22) Federal Judges completed this year’s survey, conducted by Exterro, answering 25...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

‘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

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

Magistrate’s Decision Regarding Spoliation Is Affirmed

by Morris James LLP on

Magistrate’s May 20, 2016 opinion regarding spoliation is affirmed. Plaintiff’s objections to the magistrate’s opinion granting in part and denying in part plaintiff’s motion for sanctions and substantive relief due to...more

Client’s Bad Behavior Imputed to Counsel – Both Get Sanctioned

by Farrell Fritz, P.C. on

In Arrowhead Capital Fin. Ltd. v. Seven Arts Entertainment, Inc. 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), District Judge Katherine Polk Failla imposed significant sanctions upon both the Chief Executive Officer...more

A Framework for Applying Proportionality in E-Discovery: The Sedona Conference Principles

by Pepper Hamilton LLP on

The principles provide a useful framework for the application of proportionality to preservation, as well as practical guidance for negotiating the scope of discovery. The Sedona Conference — a research and educational...more

Stop the Music: $25 Million Verdict Intact Despite Party’s Intentional Spoliation of Evidence

by Zapproved Inc. on

The court entered final judgment, upholding the jury’s findings and denying the defendant’s motion for a new trial, finding that harsher sanctions for the plaintiff’s intentional spoliation of material evidence were not...more

E-Discovery Day 2.0: eDiscovery Trends

by CloudNine on

We’ve recently celebrated Halloween, we’re about to celebrate Thanksgiving. Guess what we celebrate next? You guessed it, it’s…E-Discovery Day!* As the site for E-Discovery Day states, “[o]n December 1, 2016, thousands...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

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

by CloudNine on

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

Delaware District Court Interprets Amended FRCP

by Morris James LLP on

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

E-Discovery Update: Does Authority Always Win?

by McGuireWoods LLP on

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

Amended Rules Five Months Later: Early Trends in Case Law and What It Means

by Zapproved Inc. on

The amendments to the Federal Rules of Civil Procedure have been in effect since December. It didn't take long for the courts to cite them with a steady stream of opinions beginning with CAT3, LLC v. Black Lineage and Gilead...more

"The E-Discovery Digest - June 2016"

The fourth 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, cost shifting and other e-discovery...more

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