FRCP 37(e)

News & Analysis as of

Reasonable Steps to Preserve Evidence Yield More Than Selective Preservation

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

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

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

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

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

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

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

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

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?

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

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

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

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. The first opinion arrived with CAT3, LLC v. Black...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

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

Current Issues in U.S. Litigation Discussed at Korean CLE Seminar

On April 15, 2016, a select group of Korean patent and intellectual property attorneys convened at the Ritz Carlton Hotel in Seoul for a continuing legal education seminar entitled “Current Issues in U.S. Litigation.” The...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

Court Denies Motion for a Negative Inference Based upon Plaintiff’s Alleged Deletion of Emails

In one of the first cases applying the 2016 amendments to the federal discovery rules, on March 11, 2016, Judge Pratter of the United States District Court for the Eastern District of Pennsylvania issued a Memorandum Opinion...more

What’s Trending in eDiscovery

The first quarter of 2016 has been a busy one for courts adjudicating matters relating to eDiscovery. Across the pond, the English High Court approved the use of technology-assisted review, while U.S. courts have been busy...more

Federal Court Offers Clues in How the Newly Amended Rule 37(e) Will Be Applied When Electronically Stored Information Is Not...

Among the most significant changes to the Federal Rules of Civil Procedure that went into effect in December 2015 were amendments to Rule 37(e), which defines spoliation in the context of electronically stored information...more

E-Discovery Update: Changes to Rule 37’s Failure-to-Preserve-ESI Sanctions Impact Recent Rulings

For years, companies have battled different sanction standards for the failure to preserve documents. This led to over-preservation, where, to avoid accusations of “negligent” failure, companies preserved every shred of...more

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