News & Analysis as of

Before Asking for Sanctions, Check the Recycle Bin

Erhart v. BofI Holding, Inc., No. 15-cv-02287-BAS (NLS), 2016 WL 5110453 (S.D. Cal. Sept. 21, 2016). The court denied sanctions against a party where the huge majority of the files he deleted were not actually destroyed,...more

Court Clarifies that Data Must be Permanently Deleted for Sanctions (California)

Erhart v. BofI Holding, Inc., 2016 U.S. Dist. LEXIS 129906 (S.D. Cal. Sept. 21, 2016) - In this whistleblower retaliation case, the defendant moved the court to impose sanctions on the plaintiff for deleting thousands of...more

Slip and Fall Case Leads to Sanctions Faceplant

Atiles v. Golub Corp., No. 521828 (N.Y. App. July 28, 2016). The appellate court affirmed the lower court’s denial of an adverse inference instruction where the plaintiff did not establish that the additional video...more

“Can I Throw Out Those Dust Covered Files?” Defensibility, Efficiency, and the Comprehensive Guide to E-Discovery Preservation

When I was in high school, I worked for a family-owned office supply store, one of the last of the local businesses left on main street in the small Midwestern town where I lived. It was a frustrating job most of the time...more

"The E-Discovery Digest - October 2016"

The fifth 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

Dropped Cell Phone Does Not Lead to Spoliation Sanctions Under Amended Rule 37(e): eDiscovery Case Law

In Shaffer v. Gaither, No. 14-00106 (W.D. N.C., Sept. 1, 2016), North Carolina District Judge Max O. Cogburn, Jr. ruled that the sanction of dismissal requested by the defendant for the plaintiff’s lost text messages was...more

Court Discusses What Constitutes Reasonable Steps for Preserving Text Messages (North Carolina)

Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016) In this employment law case, the defendant moved the court to dismiss the case for evidence destruction. The plaintiff accidentally destroyed her...more

Medical Litigation Newsletter - October 2016

When a Defensible Claim Goes Sour: Defending Spoliation of Evidence Claims - Let us assume you have a credible defense to the negligence allegations as to the care and treatment provided by a doctor, hospital, medical...more

Appeals Court Upholds Default Judgment for Discovery Violations, Including Wiping Files from Laptop: eDiscovery Case Law

In Trude et. al. v. Glenwood State Bank, et. al., Nos. A15-0378, A15-1863, A15-1864 (Minn. App., Aug. 15, 2016), a Minnesota Appeals Court affirmed the trial court’s entry of default judgment for repeated discovery...more

A Banner Week For Buckman Preemption

There used to be a TV show called “That Was the Week That Was.” It was a satirical look at the news of the prior week, but perhaps it’s most lasting accomplishment was to launch David Frost’s career. Without an ounce of...more

Being a Returned Fugitive from Justice May Not Be the Worst Thing

But don’t flee justice! This is not legal advice to you, but I really don’t mean to recommend avoiding problems with federal prosecutors by going to other countries where it’s hard for those prosecutors to catch up with you....more

Court Grants $3,000,000 in Punitive Damages for ESI Spoliation (Delaware)

GN Netcom, Inc. v. Plantronics, Inc., 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016) - In this antitrust case, the plaintiff motioned the court to grant sanctions for ESI spoliation. In 2012 upon notice of a...more

$3 Million Spoliation Sanction Despite Company’s Litigation Hold

Manufacturers involved in litigation must properly preserve electronically-stored information (“ESI”) or potentially face daunting sanctions. A recent antitrust case, however, demonstrates that lessons—multi-million dollar...more

Throwback Thursday: 6 Months of Case Law Under the New FRCP [Webinar]

A Tale of Two Rules - The first six months after the FRCP amendments produced extensive case law as courts and parties grappled with the application of the new rules. In particular, Rule 26(b)(1) with its emphasis on...more

2016 Updates to Ediscovery for Defendants Cheat Sheet

We’ve been remiss in updating our cheat sheet devoted to ediscovery for defendants. Because of the broad nature of the topic – these cases can and do arise in a wide variety of non-drug/device contexts – we have to research...more

If Your Expert Doesn’t Know the Product he is Testifying on, You’re Gonna Have a Bad Time

Most will remember the case McDougall v. Black & Decker Canada Inc. as being the leading Alberta case on the issue of spoliation. A fire occurred which burned down the Plaintiffs' house. The Fire Department who initially...more

Party’s Willful Destruction of Data Did Not “Optimize” the Case for Dismissal

Ericksen v. Kaplan Higher Educ., LLC, No. RDB-14-3106, 2016 WL 695789 (D. Md. Feb. 22, 2016). Where a plaintiff “willfully [ran] a computer program that she knew, given her computer expertise, would destroy at least some...more

The Failure to Issue a Legal Hold Can Cause a Case to Crash and Burn

Bruner v. Am. Honda Motor Co., No. 1:15-00499-N, 2016 U.S. Dist. LEXIS 62810 (S.D. Ala. May 12, 2016). Where a defendant had never initiated a legal hold and had been continuously deleting e-mails since litigation began,...more

I am not a Crook: Avoiding the Politics of Data Preservation with a Defensible E-Discovery Process

Of course we've all heard about Hillary's emails, and Trump certainly has email trouble of his own. For a while, Politwoops kept track of mistweets and other online regrets even after they were deleted until Twitter (and...more

"The E-Discovery Digest - June 2016"

The fourth 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, cost shifting and other e-discovery...more

Want Sanctions? Establish That Relevant Information Was Actually Lost

FiTeq, Inc. v. Venture Corp., No. 13-cv-01946-BLF, 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016). In an order disposing of eleven motions in limine, the court denied the plaintiff’s request for sanctions from alleged...more

E-discovery and the Duty to Preserve

If you’re involved in a suit in federal court, then the Federal Rules of Civil Procedure apply to you. Rule 26(b) provides, among other things, that parties may obtain discovery regarding any non-privileged matter that is...more

Zapproved’s Brad Harris on Fundamentals of a Good Evidentiary Preservation Plan

The duty to preserve evidence is well established; litigants must take reasonable steps to ensure information is not deleted or altered once the duty arises. The duty to preserve applies equally to both plaintiff and...more

Ignorance Not Bliss When Destroying Digital Evidence (New York)

NFL Mgmt. Council v. NFL Players Ass’n., 2016 WL 1619883 (2d Cir. Apr. 25, 2016) - In this employment law case (commonly known as “deflategate”), the plaintiff moved for the upholding of an arbitration decision. One of...more

You Can’t Delete and You Can’t “Hide” (New York)

Thurmond v. Bowman, 2016 WL 1295957 (W.D.N.Y. Mar. 31, 2016) - In this Fair Housing Act case, the defendants motioned for sanctions against the plaintiff for deleting Facebook posts. The plaintiff argued that the posts...more

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