Spoliation

News & Analysis as of

The New Rule 37(e) Pushes Forward

The proposed revision of Rule 37(e), which recently cleared another hurdle in the rulemaking process, could dramatically limit the exposure companies face from spoliation claims. It may also go too far....more

Spoliation Instruction But No Terminating Sanctions in Coding Trade Secrets Case

The United States District Court for the Southern District of Texas declined to impose litigation ending discovery sanctions for several claims of spoliation, but does plan to issue a spoliation instruction in Quantlab...more

PersonalWeb v. Google: Duty to Preserve Emails Began When Patent Was Acquired

PersonalWeb Technologies, LLC ("PersonalWeb") filed a patent infringement action against Google for infringement of its "Truenames" patents. Google filed a motion for sanctions based on a contention that PersonalWeb...more

The Spoliation of Text Messages

In the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course of litigation. As with any other...more

Court Denies an Adverse Interference Absent Materiality (New York)

Cognex Corporation v. Microscan Systems, Inc., 2013 WL 6906221 (S.D.N.Y. Dec. 31, 2013). in this patent infringement suit, the defendants moved for sanctions for spoliation of a disk that was essentially destroyed...more

Plaintiffs’ Attempt to Conceal Certain Text Messages Backfires (Puerto Rico)

Calderon v. Corporacion Puertorriquena de Salud, 2014 WL 171599 (D. P. R. Jan. 16, 2014). In this employment law case, the plaintiffs only produced a portion of the demanded text messages during discovery, claiming the...more

District Court Refuses to Vacate Sanctions Ruling for Spoliation after Settlement

Digital-Vending Services International, LLC ("Digital-Vending") filed a patent infringement action against The University of Phoenix, Inc. and Apollo Group, Inc. ("Defendants"). During the course of the litigation, the...more

Sanctions ordered against business for unintentional failure to protect evidence in anticipation of litigation

Following a broadening trend, the U.S. District Court for the Southern District of California recently held that a party is subject to sanctions – including an adverse inference instruction at trial – for negligently failing...more

Google Case Provides Spoliation Exception to Living Document Safeguard

Google has come under scrutiny in the last few years over collecting information from users’ email accounts to provide targeted advertising for its paid clients. ...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

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

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

E-Discovery in 2013 – Waiting for Godot, Closing Kimonos, and Your World Doesn’t Just Seem Bigger

In some respects, 2013 seemed like a conversation between Vladimir and Estragon. Some commentators likened it to a simple, unified message that finally had E-Discovery practitioners, litigators in general, and affected...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

Avoid Spoliation Motions by Ensuring Continued Compliance with Litigation Holds

Attorneys and clients must collaborate to ensure compliance with litigation holds and evidence-preservation orders. In Marcone APW, LLC v. Servall Company (Sup. Ct., Erie Cnty., Index No. 2010-7257), Phillips Lytle...more

2013 Case Law: “Back to Basics” Approach Gave Us Something to Chew On

2013 for ediscovery “was a very good year.” The courts’ unified message was simple (showing a renewed interest proportionality and cooperation), clear (attorneys in 2013 must know ediscovery), and even a bit provocative (see...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

Top 5 Ediscovery Case Summaries - December 2013: Virginia: Improper Preservation and Untimely Disclosures Lead to Heavy Sanctions

Digital Vending Servs. Int’l, Inc. v. Univ. of Phoenix, Inc., 2013 WL 5533233 (E.D. Va. Oct. 3, 2013). In this intellectual property case, the defendants filed a motion for sanctions due to the plaintiff’s alleged...more

The Dog Ate My Evidence: Document Destruction Policies And The Duty To Preserve

In This Issue: - The Duty to Preserve ..What triggers the duty to preserve? ..Who has a duty to preserve? ..What is the scope of the duty to preserve? - Litigation Hold Notices - Potential...more

Facebook Fables in Employment Litigation

In recent years, employers have become familiar with navigating social media from a human resources perspective. These same issues are now making their way through the courts, and the rulings issued can serve as guideposts...more

Changing the Federal Rules: Commentary Opens, Advocacy Thrives

Who should bear the burden of showing prejudice (or a lack thereof) as a result of spoliation? The innocent party or the spoliating party? This vexing catch-22, which requires proof of what isn’t there, has not only lead to...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

Top 5 Ediscovery Case Summaries - November 2013: Puerto Rico: Court Extends Duty to Preserve to Personal Email Accounts, Denies...

P.R. Tel. Co. v. San Juan Cable LLC, 2013 WL 5533711 (D.P.R. Oct. 7, 2013). In this antitrust case, the plaintiff sought an adverse inference instruction against the defendants, who allegedly failed to preserve...more

Proposed eDiscovery Rule Would Bring Relief from Specter of Sanctions

The Rules Advisory Committee has recommended proposed amendments to the Federal Rules of Civil Procedure that would set guidelines for courts to follow when evaluating a request for sanctions for spoliation of discovery...more

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