Record Preservation

News & Analysis as of

Necessary Ingredients for Sound Legal Holds

Whenever e-discovery and healthcare litigation and investigations come up, you can almost always count on the topic to include a discussion of sanctions. That’s not an accident. There has been an uptick in both the volume of...more

Preservation by Backup Tape – Your First Five Questions . . .

This is the inaugural post in Discovery Advocate’s new series, “Your First Five Questions,” in which we identify a question commonly (or sometimes not so commonly) seen in practice followed by the first five questions you...more

Inadequate Record Keeping May Result in Gross Negligence For Injuries Caused by Exercise Equipment Malfunction

In Chavez v. 24 Hour Fitness USA, Inc., 2015 No. H040987, the California Court of Appeal, Sixth District, reversed summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (“24 Hour”), holding defendant’s incomplete...more

They Didn’t Teach You This in Law School: Preserving Error as to PowerPoint Presentations at Trial

Today, it is rare for a trial to take place without the use of PowerPoint presentations. They most often appear during opening statement, the examination of experts, and closing argument. So let’s suppose that opposing...more

Diligence and Defensible Deletion Prevent Sanctions (Virgin Islands)

United Corporation v. Tutu Park Ltd., Inc., 2015 WL 457853 (V.I. Super. Jan. 28, 2015). In this breach of contract case, the plaintiff asked the court to impose sanctions on Kmart, a non-party to the suit, and to hold...more

International Fraud & Asset Tracing (3rd Edition), France

In this Guide: - Introduction - Managing the Internal Investigation - Disclosure from Third Parties - Steps to Preserve Assets/Documents - Civil Proceedings - Anti-Bribery/Anti-Corruption Legislation -...more

Show Me the License: Is Your Company Ready?

Good record-keeping is a burden. But doing so is important. Here is an example of why it is important to keep good records of all software licenses....more

Motions In Limine, Contemporaneous Objections, And The Need To Adequately Preserve The Record

Does your motion in limine sufficiently preserve your objection to the introduction of evidence at trial, or do you need to be on your toes to make a contemporaneous objection at trial? A recent Illinois decision illustrates...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

Want to Arbitrate Employee Disputes? Keep Your Paperwork!

Arbitration agreements, and their use as a means to avoid class action disputes in particular, have been repeat news items in the last several years, and many companies continue to consider their use as a means to mitigate...more

Preserving a Complete (and Confidential) Record for Appeal

Now that the first wave of Final Decisions have issued from the PTAB, the question has arisen regarding what to do with sealed documents in an IPR record while the decision is appealed. Pursuant to Patent Office Trial...more

Business Litigation Alert: "What You Don't Keep Can Hurt You"

A recent Texas Supreme Court decision has important implications for the policies companies follow in Texas to avoid accusations that they have tampered with evidence or destroyed records improperly. The Supreme Court...more

Who Is at Fault When a Driverless Car Is in an Accident?

One author's view on how to determine the answer that may surprise you....more

Do You Know Where Your Data Went? Best Practices for Preserving Electronically Stored Information

A federal judge in Illinois recently ordered a large pharmaceutical company to pay nearly $1 million because when the business was sued, it failed to remind its sales representatives to preserve text messages. Last year, a...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

Employment Tip #1

Document, Document, Document!!! Documenting what was said, even with witnesses present, contemporaneously with the event, is the most reliable method to preserve evidence and a good business practice. ...more

Fast Five: Rhode Island Appellate Practice - February 2014

TRIAL COURTS MAY NOT CIRCUMVENT SUPREME COURT’S EXCLUSIVE JURISDICTION TO ENLARGE TIME FOR APPEAL. In an order this term, the Rhode Island Supreme Court held that the Family Court exceeded its authority when it vacated...more

Court of Appeals Dismisses Plaintiffs for Failure to Preserve and Increases Defendant’s Taxable Costs (5th Circuit)

Moore v. Citgo Co., LP, 735 F.3d 309 (5th Cir. 2013). In this appellate Fair Labor Standards Act litigation, the class of plaintiffs sought overtime pay for work hours that had been misclassified by the defendant...more

Ediscovery Year(s) in Review: The Bigger Picture from 2008—2013

While there is significant value in knowing the latest trends in ediscovery case law, I’m reminded of one of my favorite law school professors who always stressed that I try to see the forest for the trees. In other words,...more

My (Google) Hangout with the Ediscovery Experts

What happens when seven of the smartest, most articulate ediscovery professionals come together for an hour talk about—quite frankly—whatever they want? Just yesterday Josh Gilliland, Samir Mathur, Barry Murphy, Ralph...more

Proposed Amendments to the Federal Rules Provide Some Relief from the Fear of Sanctions in ESI, But Preservation Best Practices...

Many potential litigants have been aggressive in their preservation of electronically stored information (ESI) to diminish the risk of spoliation sanctions – a risk driven by courts that have imposed sanctions with little or...more

eDiscovery: Tips and Traps (Presentation)

•GHOST/MIRROR: Complete bit by bit copy of a drive. (Not just copying data; actually reproducing the hard drive.) •LEGACY: Information from older systems no longer actively supported and not easily...more

Bridging the Gap in Ediscovery Best Practices

The Ediscovery Best Practice Gap - Kroll Ontrack’s 2012 Year in Review suggested that the total number of cases addressing sanctions decreased while courts spent more time scrutinizing search protocols. ...more

Top 5 Ediscovery Case Summaries – July 2013: California - Spoliation Sanctions Levied Against Damages Awarded in Rambus Case

SK Hynix Inc. v. Rambus, Inc., 2013 WL 1915865 (N.D. Cal. May 8, 2013). In this complex set of patent-infringement cases, the plaintiffs sought spoliation sanctions against the defendant—who prevailed in the underlying...more

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