Litigation Hold

News & Analysis as of

Creating a Consistent E-Discovery Preservation Hold Process

Exterro was founded with the simple vision that applying the concepts of process optimization and data science to the way companies respond to litigation would drive more successful outcomes at a lower cost. The process part...more

Important Implications for Merger Planning: Canadian Competition Tribunal Issues Decision on Interim Remedies and Use of Hold...

On June 3, 2015, the Canadian Competition Tribunal issued a decision requiring Parkland and Pioneer to hold separate six retail gas stations for the duration of the Commissioner of Competition’s challenge to their proposed...more

Do You Have an E-Discovery Case Management Checklist?

A simple checklist doesn't exactly scream innovative solution to a complex problem but that doesn't mean it doesn't work. In fact, project managers will tell you that a checklist can do wonders to take an inefficient process...more

Document Preservation: Know When to Hold ‘Em (and When to Fold ‘Em)

The cut-throat, high stakes environment of a nail-biting poker tournament is oddly similar to the world of document preservation in litigation, investigations and regulatory events. Though the former tends to take place in a...more

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

Ethical Obligations for Florida Attorneys: Advising Clients on Social Media - Rule 4-1.1 and Rule 4-3.4 Describe the Competency...

What ethical obligations does a Florida attorney have when advising a client to remove material from social media sites before litigation? Until recently, it was an open question; however, on Jan. 23, 2015, The Florida Bar’s...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

A Game-Changing Misstep for Walmart?

A federal district court recently sanctioned Walmart for "spoliation of evidence" in an employment litigation case. Although Walmart has asked the Court to reconsider its decision or allow it to appeal the decision to the...more

The Duty to Preserve Electronically Stored Information

As soon as a party is served with a summons and complaint and sometimes sooner, there arises a duty to preserve evidence, including electronically stored information (ESI). This duty requires both counsel and clients to...more

Fifth Circuit Finds SOX Violation in Disclosure of Whistleblower’s Identity

The Fifth Circuit affirms the DOL Administrative Review Board’s decision that employer disclosure of a whistleblower’s identity in a document retention notice constitutes an adverse action....more

5th Circuit: Outing Whistleblower Equals Adverse Action

On November 12, 2014, in Halliburton, Inc. v. Admin. Review Bd., 5th Cir. No. 13-cv-60323, the Fifth Circuit affirmed an ARB’s decision that disclosing the identity of a whistleblower may constitute an “adverse action” under...more

No Good Deed Goes Unpunished: Document Preservation Notices Can Lead to SOX Violation!

On November 12, 2014, the Fifth Circuit affirmed a Department of Labor finding that Halliburton retaliated against a whistleblower by including his name in a document preservation notice. The court also held that emotional...more

Defendants’ Failure to Impose Litigation Hold Leads to Sanctions (Arizona)

Vicente v. City of Prescott, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014. In this employment dispute case, the plaintiffs sought a summary judgment motion and motion for sanctions due to the defendants’ “failure to preserve...more

Written Document Retention and Destruction Policy Saves the Day (Again)

As we mentioned in our previous posts regarding document preservation, establishing a written document retention and destruction policy is essential to any company, large or small. As with the Pradaxa case out of the Southern...more

E-Discovery - Nevada U.S. District Court's Special Master's Report and Recommendations: Failure to Preserve ESI, Litigation Holds

Small v. University Medical Center of Southern Nevada arises out of an employment law dispute. The court appointed a special master who found that the defendant medical center failed to preserve a considerable body of...more

Shoddy Mobile Device Use Policy and Failure to Institute Litigation Hold Leads to Default Judgment and Hefty Sanctions (Nevada)

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 U.S. Dist. LEXIS 114406 (D. Nev. Aug. 18, 2014). In this employment law dispute, the court appointed a special master to resolve discovery issues....more

The 21st Century Water Cooler: Discovery and Text Messages

Text messages, once the exclusive domain of teenagers and college students, are increasingly used in business communications. These communications are, unsurprisingly, also discoverable in a wide variety of litigation...more

The Ghosts of Litigation Holds Past

Earlier this year, in the widely followed In re: Actos (Pioglitazone) Products Liability Litigation matter, a Louisiana federal jury ordered a drug manufacturer to pay $6 billion in punitive damages and $1.5 million in actual...more

Social Media and Spoliation

As we discussed in our previous post regarding the Christou case, social media is discoverable – and consequently subject to a litigation hold. From an evidentiary standpoint, social media is not without its shortcomings, and...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

Inter Partes Review Worthwhile Alternative to Patent Litigation

The United States Patent and Trademark Office (USPTO) recently issued its second decision in a new inter partes review proceeding. In the decision, the USPTO Patent Trial and Appeal Board invalidated all of the claims of the...more

BYOD Lessons From Jersey's Bridge Scandal

So, have you implemented a Bring Your Own Device policy yet? If not (and your employees are using their personal devices for business purposes), your organization may be at risk....more

Lackluster Retention Policy Leads to Spoliation Sanctions (California)

Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, 2013 WL 6159177 (S.D. Cal. Nov. 25, 2013). In this patent and trademark infringement case, the plaintiffs sought sanctions for the defendants’ alleged spoliation and...more

“Saving Everything” No Defense to Spoliation Argument

As we discussed in our previous spoliation post, parties are required to place a litigation hold on all documents once litigation could be reasonably anticipated. Although there are certain definite “trigger events”, such as...more

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