Evidence Preservation: Handling the Issues in New York and New Jersey
The duty to preserve potentially relevant evidence is an affirmative obligation. Yes! Attorneys and their clients must take action to ensure preservation of discoverable documents. The duty to preserve evidence arises when a...more
Two of the most compelling discovery sanction cases of the past year are Klipsch Group., Inc. v. ePRO E-Commerce Ltd. and Ronnie Van Zant, Inc. v. Pyle, both decided in the Second Circuit. In the first, the court awarded...more
The ninth 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
Within two years of its implementation, several cases show that amended Rule 37(e) is having its intended impact, as judges are carefully applying the criteria articulated in the Rule prior to ordering curative measures or...more
There was a time when the only data you needed to collect in response to a discovery request was corporate email. Even if you received or sent work emails from your phone, this data would be located on a corporate server and...more
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
A recent case offers a cautionary tale of how courts may cite to the requirements of amended Federal Rule of Civil Procedure 37(e), which governs imposing sanctions for failure to preserve electronically stored information...more
The scope of discovery may be more limited than you think. The Cole’s Wexford opinion provides a thorough dissection of the history and past iterations of Rule 26 and a clear explanation of the status of the current rule as...more
It is the beginning of a new year and I thought it the ideal time to list out those steps that are absolutely critical when an attorney is confronting his/her obligation to produce e-discovery in connection with a litigation....more
While your organization may not regularly be involved in costly or complicated litigation, there is always the potential for this to arise. Additionally, you may work in an industry that is heavily regulated and subject to...more
After years of decisions, the issues surrounding the preservation of electronically stored information (ESI) seem almost old hat. It is well known that, upon notice of a claim or commencement of litigation, a party needs to...more
John Mellencamp sang, “I fight authority, authority always wins,” but inherent authority may not carry the day anymore when it comes to e-discovery sanctions under the new rules. Federal Rule of Civil Procedure Rule 37(e) now...more
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
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
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
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
The course of federal civil litigation will take a turn on December 1, 2015, with pending amendments to several rules governing discovery, case management, and the preservation of electronically stored information (“ESI”) set...more
On April 29, 2015, the United States Supreme Court adopted the package of proposed amendments to the Federal Rules of Civil Procedure (“FRCP”) that had been approved by the Civil Rules Advisory Committee (the “Committee”)....more
The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules...more