News & Analysis as of

Duty to Preserve

Court Issues Adverse Inference Sanction for Failing to Preserve Non Party’s Text Messages: eDiscovery Case Law

by CloudNine on

...In Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017), New York District Judge Robert W. Sweet, among other rulings, issued an adverse inference sanction against one of the defendants for its...more

4 Things the Top E-Discovery Cases of 2017 Can Teach You

by Exterro, Inc. on

Two years on from the last round of FRCP amendments, the courts are still clarifying how these e-discovery rules will be interpreted. One lens through which we can better understand how the court is interpreting the...more

Dispute Over Scope of Preservation Obligation Leads to Partial Sanctions For Now: eDiscovery Case Law

by CloudNine on

In E.E.O.C. v. GMRI, Inc., No. 15-20561-CIV-LENARD/GOODMAN (S.D. Fla. Nov. 1, 2017), Florida Magistrate Judge Jonathan Goodman, in a very lengthy and detailed order, denied in part and granted in part the plaintiff’s motion...more

Court Says Spoliation Motion ‘Borders on Frivolous’

by Zapproved LLC on

Barcroft Media, Ltd. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF), 2017 U.S. Dist. LEXIS 164162 (S.D.N.Y. Sept. 28, 2017). The court denied the plaintiff’s motion for spoliation sanctions where the evidence in question...more

Hospital Answer Stricken for Destroying Paper Medical Record after Scanning into the EMR

On Wednesday, October 25, 2017, the Arkansas Court of Appeals handed down an opinion affirming a severe sanction against a hospital in a medical malpractice case. The trial court had stricken the hospital’s answer, where...more

Outgoing NLRB General Counsel Leaves Parting Gift: A Warning to Preserve Evidence

by Faegre Baker Daniels on

Just before National Labor Relations Board (NLRB) General Counsel Richard F. Griffin’s term expired on October 31, 2017, Griffin quietly left a parting gift to those who file charges at the agency (usually unions and...more

Houston, We Have a Problem – Court Specifies Jury Instructions to Address Spoliation Findings: eDiscovery Case Law

by CloudNine on

In GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS (D. Delaware, Oct. 5, 2017), Delaware District Judge Leonard P. Stark chose to determine the preliminary and final jury instructions he would give with respect to the...more

The E-Discovery Digest - October 2017

The eighth 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....more

Potential Adverse Inference Instruction for Unintended ESI Spoliation May Suggest Limitations of Recently Amended Rule 37(e)

Much writing about electronic discovery consists of horror stories, often about harsh sanctions for unintended loss of electronically stored information (ESI). The Federal Rules were amended in late 2015 to address concerns...more

Negligence in Preserving ESI Warrants Monetary Sanctions

by Zapproved LLC on

N.M. Oncology & Hematology Consultants v. Presbyterian Healthcare Servs., No. 1:12-cv-00526 (D.N.M. Aug. 16, 2017). Because the defendant was merely negligent in producing discoverable information, the magistrate judge...more

eDiscovery Includes Electronic Vehicle Data and Possible Sanctions for Spoliation

Discovery of relevant material extends far beyond documents created on personal computers. Discoverable data exists in many forms, including electronic data found in vehicles such as tractors used for tractor-trailers. This...more

Plaintiff Sanctioned for Preserving Only Scanned Copy of Journal and Destroying the Original: eDiscovery Case Law

by CloudNine on

In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. Sept. 20, 2017), Colorado Magistrate Judge Nina Y. Wang granted (in part) the defendant’s motion for sanctions for the plaintiff’s delay in producing a...more

Intentional Data Destruction Gets Default Judgment in OmniGen Research v. Wang

by Zapproved LLC on

OmniGen Research v. Wang, No. 6:16-cv-00268-MC, 2017 U.S. Dist. LEXIS 78107 (D. Or. May 23, 2017). Relying on the Federal Rules of Civil Procedure and its inherent authority, a court recently imposed the extraordinary remedy...more

How Much Circumstantial Evidence is Enough for Spoliation Sanctions?

by Exterro, Inc. on

We’ve all heard, “It’s not whether you win or lose, but how you play the game.” But how you play the game is often a big part of ending up on the winning side in e-discovery. In today’s world, it has almost become normal that...more

Practical Tips For An Effective Litigation Hold Notice

by Farrell Fritz, P.C. on

I recently wrote about the importance of styling one’s litigation hold in a broad, but sufficiently specific way. Some of you may be thinking, well, that’s all fine and good but what is a litigation hold? Why and when do I...more

Thursday’s ILTACON 2017 Sessions: eDiscovery Trends

by CloudNine on

As noted Monday, Tuesday and yesterday, the International Legal Technology Association (ILTA) annual educational conference of 2017 (otherwise known as ILTACON) is happening this week and eDiscovery Daily will be reporting...more

Your Litigation Hold Must Be Generally Broad And Specifically Tailored

by Farrell Fritz, P.C. on

In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones, Jr., denied Plaintiff Eshelman’s motion seeking a jury instruction in response to Puma Biotechnology Inc.’s...more

Plaintiff Sanctioned for Spoliation of Evidence in His Case Against Taylor Swift: eDiscovery Case Law

by CloudNine on

In Mueller v. Swift, No. 15-cv-1974-WJM-KLM (D. Colo. July 19, 2017), Colorado District Judge William J. Martinez ruled that “Plaintiff’s loss or destruction of the complete recording of the June 3, 2013 conversation [between...more

Texts and Message Apps Are Changing Internal Investigations

It almost goes without saying that these days not all pertinent business-related communications can be found on corporate email servers. As we have increasingly seen in recent internal investigations, some of the most...more

Encyclopedia Brown and the Fraudulent Font: New Data Types Continue to Play a Major Role in Investigations

by Exterro, Inc. on

As a kid, I loved the Encyclopedia Brown stories, which were about a boy who ran his own detective agency and solved mysteries (for a fee of 25 cents) that arose in his school and around town. One story I remember in...more

Employer Loses Defense To EEOC Suit Because It Didn’t Preserve Records

Just a quick reminder to employers to PRESERVE THEIR RECORDS when litigation is not only pending but also threatened. "If you wait until the sheriff serves you with a summons and complaint, you may have waited too long....more

Key Considerations for Adopting Ephemeral Communications Tools

by Mintz Levin - Mintz Edge on

The combination of emerging technologies, information security risks and electronic discovery obligations continues to give rise to questions regarding best practices for adoption of modern ephemeral communication tools in...more

Fundamentals of Document and ESI Discovery

by Knobbe Martens on

Preserving Evidence: •“The duty to preserve evidence begins when litigation is ‘pending or reasonably foreseeable.’” Micron Tech., Inc. v. Rambus, Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) •“It is, of course, not...more

The Challenge of Releasing Legal Holds and Disposing of ESI

by Exterro, Inc. on

On paper, releasing a legal hold seems fairly straightforward. A matter reaches a resolution, preservation obligations are lifted, the legal team informs custodians and data stewards that they are no longer required to retain...more

Failure to Prove ‘Intent to Deprive’ Web Browser History Robs Plaintiff of Sanctions

by Zapproved LLC on

Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017). In this defamation case, the court denied a jury instruction for spoliation where the plaintiff failed to prove that the defendant...more

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