Spoliation

News & Analysis as of

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

Looking Back on 2015: The 6 Most Important eDiscovery Cases in Delaware

2015 saw continued interest by the Delaware courts in various aspects of eDiscovery. The courts dealt with broad issues, such as spoliation and general discovery misconduct, while also focusing on narrower issues, such as...more

Failure to Stop Automatic Deletion of Text Messages Does Not Merit Sanctions (Florida)

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016) - In this case, the plaintiff motioned for sanctions against the defendant for the deletion of text messages. 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

Case and Sanctions Dismissed in Light of New Evidence (New York)

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016) - In this trademark infringement case, the parties stipulated to dismissal, with prejudice, of all remaining claims in the case. Previously, the...more

Claims of Lightning Strike and Power Surge Fail to Protect Against Sanctions (California)

InternMatch v. Nxtbigthing, 2016 WL 491483 (N.D. Cal. Feb. 8, 2016) - In this trademark infringement case, the plaintiff brought terminating sanctions against the defendants, accusing the defendants of intentionally...more

Everything Old is New Again: New Sources for Spoliation Sanctions

A recent case in the Middle District of Tennessee highlights the scope and limits of spoliation sanctions under amended Rule 37(e). In Benefield v. MStreet Entertainment, LLC, 2016 WL 374568 (M.D. Tenn., Feb. 1, 2016), the...more

Will Texas Stay Moderate When it Comes to e-Discovery?

With the onslaught of nonstop news concerning the forthcoming presidential election, and the extreme positions the various camps frequently take, moderation and reasonableness, especially in Texas, seems to be on the wane....more

Adverse Inference Instruction Issued in Light of Newly Amended Rule 37(e) (Florida)

Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016) - In this wrongful termination case, the defendant employee sought the return of his personal laptop from the company plaintiffs, who refused to...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

Court Vacates Prior Adverse Inference Order in Light of Amended Rule 37(e) (California)

Nuvasive v. Madsen Med., 2016 WL 305096 (S.D. Cal. Jan. 26, 2016) - In this case, the court granted the plaintiff’s motion to vacate a prior order that imposed an adverse inference for the plaintiff’s failure to preserve...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

Court States that Plaintiffs’ Overly Broad Requests Do Not Justify Defendants’ Failure to Issue Litigation Hold (New York)

Stinson v. City of New York, 2016 WL 54684 (S.D.N.Y. Jan. 5, 2016) - In this civil rights lawsuit, the court found the city-defendants to be grossly negligent in issuing and executing its litigation hold for the...more

Steps Companies May Take to Comply with Revised Document Retention Requirements

Federal Rule of Civil Procedure 37(e) sets forth the requirements for the retention of electronically stored information ("ESI") and the corresponding sanctions available to remedy the loss of ESI. New amendments to Rule...more

The E-Discovery Digest - February 2016

This is the third edition of The E-Discovery Digest, a periodic publication on notable decisions relating to key discovery topics. It is designed to keep clients up to date on the evolving state of the law regarding discovery...more

Guide to ESI Preservation Responsibilities 2016

Abstract - A guide for clients, lawyers, information technology staff and others interested in the litigation-related obligation to preserve electronically stored information (ESI) in United States litigation. The...more

Amendments to ESI Spoliation Sanctions Seek to Create Uniformity in Federal Courts

Federal Rule of Civil Procedure 37(e) sets forth the requirements for the retention of electronically stored information ("ESI") and the corresponding sanctions available to remedy the loss of ESI. New amendments to Rule...more

Three Things Every Employer Should Know About E-Discovery

E-discovery. If this word strikes terror into your heart, you are not alone. Already a formidable task, discovery became exponentially more onerous with the advent of modern technology. Instead of just looking through a file...more

N.D. Mississippi Invokes Buckman in Rejecting Plaintiff Efforts to Screw Up Product Liability Law

We are determined not to end 2015 on a bad note. Thus, we turn, as we do with surprising frequency (and as we did last week), to a federal court decision out of Mississippi for a heaping helping of solid legal reasoning. ...more

ITC Section 337 Update – December 2015

Amendments To Federal Rules Of Civil Procedure Announced – Effective December 1, 2015, the Federal Rules of Civil Procedure (“FRCP”) have been amended with respect to pleading requirements and discovery. Notably, the FRCP do...more

Appellate Court Affirms Sanctions in Light of “Delay Tactics” and Spoliation (Massachusetts)

Long Bay Management Co. v. Haese, 2015 WL 7213811 (Mass. App. Ct. Nov. 17, 2015) - In this overbilling dispute, the defendants appealed a judgment pursuant to an order of default sanctions and an order assessing damages,...more

Court Finds Sanctions Inappropriate Following Plaintiff’s Failure to Establish Prejudice (Georgia)

West v. Talton, 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015) - In this case, the court granted the defendants’ motion to exclude plaintiff’s use of any argument or evidence of alleged spoliation. The plaintiff discovered that...more

Court Excludes Expert Testimony Weakened by Plaintiff’s Own Spoliation (Pennsylvania)

Bruno v. Bozzuto’s, 2015 WL 7294464 (M.D. Pa. Nov. 19, 2015) - In this breach of contract case, the plaintiffs sued the defendant for allegedly breaching their supply agreement. In response to the defendant’s production...more

Year in Review: Top Ediscovery Cases of 2015

As another year wraps up, we look forward to the holidays and the promise of a new year. There is no better time to remember the highlights of ediscovery case law in 2015. Duty to preserve, emphasis on proportionality and...more

Gavel to Gavel: Federal rules amended

Amendments to the Federal Rules of Civil Procedure went into effect Dec. 1. These amendments are designed to save litigants time and money by reducing delay, encouraging courts to limit discovery, sharpening the scope of...more

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