News & Analysis as of

Failure To Preserve

Court Orders Evidentiary Sanctions for Plaintiffs’ ‘No Special Effort’ to Preserve Evidence

by Zapproved LLC on

Leidig v. BuzzFeed, Inc., No. 16 Civ. 542 (VM) (GWG) (S.D.N.Y. Dec. 19, 2017). In this defamation case, the court ordered evidentiary sanctions to address the prejudice caused by the plaintiffs’ negligent preservation...more

Real Property & Financial Services Update: Week Ending February 16 & 23, 2018

by Carlton Fields on

REAL PROPERTY UPDATE - Breach of Contract/Damages: court erred by precluding setoff when calculating damages because purpose of award is to restore the injured party to the position it would have realized no for the other...more

No Sanctions for Failing to Preserve Cell Phone Records and Call Logs: eDiscovery Case Law

by CloudNine on

In Dotson, et al. v. Edmonson, et. al., No. 16-15371 (E.D. La. Jan. 22, 2018), Louisiana District Judge Susie Morgan denied the plaintiff’s motion in limine seeking sanctions for spoliation of evidence, finding that the...more

The Lynyrd Skynyrd Texting Case: Spoliation and Non-Party Texts

It was a tragedy. The 1977 plane crash that killed Ronnie Van Zant and Steven Gaines almost ended the band Lynyrd Skynyrd forever. In the wake of the crash, the survivors swore an oath never again to perform as “Lynyrd...more

No Sanctions for Failing to Preserve Videos and Photos of Prisoner Accident: eDiscovery Case Law

by CloudNine on

In Hernandez v. Tulare Cnty. Correction Center, et al., No. 1:16-cv-00413-EPG (PC) (E.D. Cal. Feb. 8, 2018), the California Magistrate Judge denied the plaintiff’s motion for sanctions, ruling that the defendants did not act...more

Glitch in the Matrix – The Vital Role of Communication Between All Stakeholders in eDiscovery: eDiscovery Best Practices

by CloudNine on

...Jim’s post below highlights the importance of communications between all stakeholders in the discovery process.... ...In an article by Morgan Chalfant at The Hill posted on January 25th, it was reported that text...more

An End to Over-Preservation? An Expert Perspective on the FRCP

by Exterro, Inc. on

This blog post is adapted from commentary on Rule 37 by William F. Hamilton, Legal Skills Professor and Executive Director, UF Law E-Discovery Project Fredric G. Levin College of Law, University of Florida, in FRCP &...more

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

The So-Called “Innocent Spouse” Defense to Denial of Discharge Under 11 U.S.C. § 727(a)(3)

by Burr & Forman on

Under § 727(a)(3) of the Bankruptcy Code, a court shall not grant a debtor’s discharge if “the debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve any recorded information, including books,...more

If Evidence In Its Original Form Is No Longer Available – But A Copy Of That Evidence Is – Are Spoliation Sanctions Appropriate?

by Farrell Fritz, P.C. on

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), Plaintiffs – providers of entertainment-related photojournalism and owners of celebrity photographs – interposed various...more

Plaintiff’s Data Loss ‘Not Innocent’ in Taylor Swift Case

by Zapproved LLC on

Mueller v. Swift, No. 15-cv-1974-WJM-KLM, 2017 U.S. DIST. LEXIS 112276 (D. Colo. July 19, 2017). In this tort action and its famous countersuit, the court granted the defendant partial, rather than severe, sanctions...more

Court Characterizes Plaintiff’s Request for Spoliation of Images Still Available as “Frivolous”: eDiscovery Case Law

by CloudNine on

In Barcroft Media, Ltd. et al. v. Coed Media Grp., LLC, No. 16-CV-7634 (JMF) (S.D.N.Y. Sept. 28, 2017), New York District Judge Jesse M. Furman denied the Plaintiffs’ motion for spoliation sanctions for failing to preserve...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

Court Opts for Lesser Sanction for Failure to Preserve Electronic Vehicle Data: eDiscovery Case Law

by CloudNine on

In Barry v. Big M Transportation, Inc., et al., No. 1:16-cv-00167-JEO (N.D. Ala. Sep. 11, 2017), Alabama Chief Magistrate Judge John E. Ott denied the plaintiffs’ request for default judgment sanctions for failing to preserve...more

Court Grants Lesser Sanctions Against Defendant for Various Discovery Issues: eDiscovery Case Law

by CloudNine on

In New Mexico Oncology v. Presbyterian Healthcare Servs. No. 1:12-cv-00526 MV/GBW (D.N.M. Aug. 16, 2017), New Mexico Magistrate Judge Gregory B. Wormuth, detailing numerous defendant discovery deficiencies alleged by the...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

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

Court Shifts Costs of Forensic Computer Exam to Plaintiff for Not Preserving Emails

by Zapproved LLC on

Estate of Shaw v. Marcus, Nos. 14 Civ. 3849 (NSR) (JCM), 14 Civ. 5653 (NSR) (JCM), 2017 WL 825317 (S.D.N.Y. Mar. 1, 2017). In this complex dispute over a family business, the court redressed the plaintiff’s former...more

Court Declines to Impose Sanctions for Failure to Preserve Web History: eDiscovery Case Law

by CloudNine on

In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), North Carolina Magistrate Judge Robert B. Jones, Jr., among other rulings, denied the plaintiff’s motion for an order permitting a jury...more

The E-Discovery Digest - June 2017

The seventh 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

Should Failing to Issue a Litigation Hold Be Considered Intent to Deprive?: eDiscovery Best Practices

by CloudNine on

A lot has been discussed about the most recent changes to the Federal Rules, especially with regard to Rule 37(e) and the requirement of the intent to deprive standard to apply more serious sanctions. But, what activities...more

‘Very Poor Practice’ in Preservation Offset by the Defendant’s Choice Not to Review

by Zapproved LLC on

Wal-Mart Stores, Inc. v. Cuker Interactive, LLC, No. 5.14-CV-5262 (W.D. Ark. Jan 19, 2017). In this long-running contract case, the defendant, Cuker Interactive, requested sanctions against the plaintiff, Wal-Mart Stores...more

Client’s Bad Behavior Imputed to Counsel – Both Get Sanctioned

by Farrell Fritz, P.C. on

In Arrowhead Capital Fin. Ltd. v. Seven Arts Entertainment, Inc. 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), District Judge Katherine Polk Failla imposed significant sanctions upon both the Chief Executive Officer...more

Defendant Sanctioned for Failing to Preserve Text Messages and Failing to Produce Native Format Data: eDiscovery Case Law

by CloudNine on

In First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-1893 (N.D. Cal., Oct. 7, 2016), California Magistrate Judge Howard R. Lloyd issued permissive adverse inference instruction sanctions against the...more

Slip and Fall Case Leads to Sanctions Faceplant

by Zapproved LLC on

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

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