Record Preservation

News & Analysis as of

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

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

Gross Negligence Enough for Adverse Inference Instruction

In 2003, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York issued five landmark decisions, which have since shaped the landscape of electronic discovery and document preservation. ...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

Litigation Hold Extends to Third Party Independent Agents

Insurance and financial institutions understand the importance of data preservation, but from time to time – usually in the throes of complex litigation – the specific requirements of federal and state data preservation laws...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

Emergency Preparedness includes Safeguarding Records

Summer in the Midwest generally means heat, humidity, and the possibility of severe storms. Have you thought about what records could be destroyed if a severe storm damaged your home or business?...more

BABC eDiscovery Newsletter - April 2013

In this issue: - The Firm’s Ediscovery Team Attorneys - Case Insights - Editor’s Corner - Excerpt from Peerless Industries, Inc. v. Crimson Av, LLC, Case No. 1:11-cv-1768, 2013 U.S. Dist. LEXIS...more

[Legal Perspective] When Is It NOT Okay to Delete Your Social Media Account? [Video]

Is it ever NOT okay to delete your social media account? That's the question we ask in this JD Supra Legal Perspective. And for an answer, we look at recent coverage of a case in which an airline worker in New Jersey...more

No, You Can’t Deactivate Your Facebook Account When Litigation Is Pending

A federal magistrate judge in New Jersey recently sanctioned a plaintiff for evidence spoliation after he deactivated his Facebook account during litigation, resulting in its permanent deletion by Facebook after 14 days...more

The Illinois Supreme Court 2012: The Year in Review

During 2012, the Illinois Supreme Court filed seventy-one written opinions, thirty-nine in civil cases. Although the total opinion output was down somewhat from recent years, this represents the Court's highest number of...more

M&A Deal Counsel’s Role In Creating A Winning Written Record For Defending Breach Of Fiduciary Duty Litigation

While M&A transactions give rise to many different types of litigation, including disputes between the merger parties and statutory appraisal actions, the most common type of litigation stemming from public company mergers is...more

Spoliation Sanction For Deactivating Facebook Account

In a recent decision from the District of New Jersey, Gatto v. United Air Lines, Inc, et al., No. 10-cv-1090, 2013 U.S. Dist. LEXIS 41909 (D.N.J. March 25, 2013), the Court found that the Plaintiff had destroyed and/or failed...more

Social Media in Litigation

The first quarter of 2013 was among the busiest yet for developments in the use of social media in litigation. First, courts have continued to weigh in on the extent to which a party can obtain discovery of an opposing...more

Spoliation of Social Media Evidence: New Jersey Court Cracks Down

A March 23, 2013 decision from the U.S. District Court for the District of New Jersey serves as a cautionary tale for litigants. As a result of some arguably poor decisions by the plaintiff and likely miscommunication between...more

Top 5 Ediscovery Case Summaries – April 2013: Puerto Rico - “Careless” Deletion of ESI Warrants Exclusion of Evidence, Adverse...

E.E.O.C. v. Ventura Corp, Ltd., 2013 WL 550550 (D.Puerto Rico Feb. 12, 2013). In this case, the plaintiffs sought sanctions against the defendant for allegedly destroying relevant evidence of discriminatory hiring practices...more

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