Spoliation

News & Analysis as of

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

Court Holds High Bar for Imposing Sanctions under Rule 37(e) (Texas)

Orchestratehr, Inc. v. Trombetta, 2016 WL 1555784 (N.D. Tex. Apr. 18, 2016) - In this case regarding a non-compete agreement, plaintiffs motioned for sanctions against one of the defendants for deleting emails which they...more

Litigants Need to Prove Existence of Missing Data for FRCP 37(e) Sanctions California

FiTeq Inc. v. Venture Corp., 2016 WL 1701794 (N.D. Cal. Apr. 28, 2016) - In this contract law case, the plaintiff moved for sanctions against the defendant for failing to produce emails related to the litigation. Namely,...more

Sanctions Under FED. R. CIV. P. 37(E)

In December 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of the amended rules, Rule 37(e), was completely rewritten in an attempt to develop a uniform, national standard for the imposition...more

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

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