News & Analysis as of

Spoliation

ESI Discovery Best Practices, Part 8 – Joni Mitchell Lyrics from 40 Years Ago Foreshadow ESI Spoliation Battles of Today

by Butler Snow LLP on

While it is possible that with four decades of music, Joni Mitchell’s lyrics have been referenced in a court opinion before, I’d venture a guess that Ms. Mitchell has never made an appearance in an ESI case. That is, until...more

Court Grants Motion for Terminating Sanctions Against Defendants for Intentional Spoliation: eDiscovery Case Law

by CloudNine on

In Omnigen Research et. al. v. Wang et. al., No. 16-00268 (D. Oregon, May 23, 2017), Oregon District Judge Michael J. McShane granted the plaintiffs’ Motion for Terminating Spoliation Sanctions and agreed to issue an Order of...more

Court Grants Summary Judgment After Plaintiff’s Spoliation Motion Denied: eDiscovery Case Law

by CloudNine on

In Taylor v. Thrifty Payless, Inc., d/b/a Rite-Aid, No. 16-00474 (D. Oregon, May 12, 2017), Oregon District Judge Marco A. Hernandez granted the defendant’s motion for summary judgment after denying the plaintiff’s request...more

ITC Section 337 Update – May 2017

by King & Spalding on

Commission Holds Hearing On Antitrust Injury In Certain Carbon And Alloy Steel Products, Inv. No. 337-TA-1002 – The U.S. International Trade Commission (“the Commission”) held a rare hearing on the Administrative Law Judge’s...more

[Webinar] ACEDS Webinar: eDiscovery Pitfalls and Potholes to Avoid - June 14th, 12:00pm CT

by CloudNine on

If you’ve conducted discovery for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” could occur that can derail your project. These issues can add...more

Court Orders Specific Discovery After Complete ‘Breakdown’ Between Parties

by Zapproved Inc. on

In Bird v. Wells Fargo, the Court Orders Specific Discovery After Process Breaks Down - Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cal. Mar. 31, 2017). In this case, the discovery process broke down so completely...more

An Attorney Acting ‘With A Pure Heart And An Empty Head’ Is Sanctioned For Spoliating Emails

by Farrell Fritz, P.C. on

According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was...more

Theme Park Defense 10 Things to Know

by Rumberger Kirk & Caldwell on

Florida’s theme parks attract millions of visitors each year. Any business with that volume of visitors is certain to encounter litigation. Theme park litigation is unique because it incorporates many different types of...more

California Ordered to Immediately Pay Attorneys’ Fees in ‘Targate’ Case

by Zapproved Inc. on

United States v. HVI Cat Canyon, Inc., No. 2:11-cv-05097-FMO (PLAx) (C.D. Cal. Apr. 20, 2017). In this case, a plaintiff’s failure to properly issue and confirm legal holds led to the spoliation of evidence and...more

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

Plaintiff’s Erasure of iPhone Before Forensic Examination Leads to Recommended Dismissal of Case: eDiscovery Case Law

by CloudNine on

In Coyne v. Los Alamos National Security, LLC et. al., No. 15-0054 (D. N.M., Mar. 21, 2017), New Mexico Magistrate Judge Karen B. Molzen recommended that the court grant the defendants’ motion to dismiss after the plaintiff’s...more

Disposal of Contamination = Disposal of Evidence. Be Careful What You Throw Away!

by Snell & Wilmer on

In a recent unpublished case, the Superior Court of New Jersey held that the Plaintiff in a CERCLA case had committed spoliation when, during the course of the remedial activity, it disposed of various contaminated materials....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

Organik Kimya v. ITC: Federal Circuit Affirms Dispositive Sanctions For Bad Faith Spoliation of Evidence

On February 15, 2017, the Federal Circuit affirmed the Commission’s imposition of severe, case dispositive sanctions on Respondents for bad faith spoliation of evidence as well as the issuance of a 25-year limited exclusion...more

[Webinar] Pitfalls and Potholes to Avoid in Your eDiscovery Projects - April 27th, 10:00am PST

by CloudNine on

If you’ve conducted discovery for litigation, investigations or audits, you know that “Murphy’s Law” dictates that a number of “pitfalls” and “potholes” could occur that can derail your project. These issues can add...more

White House Allegedly Purges Electronic Devices after Order to Preserve Data: An E-Discovery Teachable Moment

by Exterro, Inc. on

According to an article published in the Independent, allegations have arisen surrounding “White House officials and members of Donald Trump’s transition team…reportedly ‘purging’ their electronic devices to avoid being...more

Hip Implant MDL Denies Summary Judgment on Claims of Plaintiffs Who Failed to Preserve Explanted Devices

by Reed Smith on

Regular readers of this blog know that we have a pretty jaded view of many MDLs. Obviously consolidation makes sense, at least on paper, in terms of efficiency and the best use of scarce court resources. But, in practice,...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

Finding of Exceptionality Leaves Unsuccessful Infringement Plaintiff Liable for Over $50 Million in Attorney Fees and Costs

Needless to say, a finding of exceptionality under 35 U.S.C. § 285 can have crippling consequences. Just ask Rembrandt Technologies, LP, which recently was slapped with an order to pay the prevailing defendants in a...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

"The E-Discovery Digest - March 2017"

The sixth 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, and discovery responses. Please see...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

Spoiler Alert: Florida Appellate Court Upholds PMA Preemption and Rejects Parallel Claim

by Reed Smith on

Over the years, comedian Adam Carolla has played the “Germany or Florida” game on his various radio and tv programs and podcasts. The game is based on the observation that many of the most bizarre stories of human ineptitude...more

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