When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.
One of the items that I bought my wife for Christmas (which she really wanted) was an UP 24™ Fitness Tracker, which is a wristband that tracks a variety of fitness metrics, including steps taken, workouts logged and calories burned (not to mention sleep cycles) and enables you to share and compare your stats with your friends via an app on your mobile device. Another example of a similar device is a Fitbit®. Based on a recent case, these devices are just another example of new devices from which relevant ESI may be collected for discovery.
As we noted yesterday, Wednesday and Tuesday, eDiscoveryDaily published 93 posts related to eDiscovery case decisions and activities over the past year, covering 68 unique cases! Yesterday, we looked back at cases related to privilege and inadvertent disclosures, requests for social media, cases involving technology assisted review and the case of the year – the ubiquitous Apple v. Samsung dispute. Today, let’s take a look back at cases related to sanctions and spoliation.
It’s time for our annual review of eDiscovery case law! We had more than our share of sanctions granted and denied, as well as disputes over admissibility of electronically stored information (ESI), eDiscovery cost reimbursement, and production formats, even disputes regarding eDiscovery fees. So, as we did last year and the year before that and also the year before that, let’s take a look back at 2014!
In Design Basics, LLC. v. Carhart Lumber Co., Nebraska Magistrate Judge Cheryl R. Zwart, after an extensive hearing on the plaintiff's motion to compel “full disk imaging of Defendant's hard drives, including Defendant's POS server, secretaries' computers, UBS devices. . .”, denied the motion after invoking the mandatory balancing test provided in FRCP Rule 26(b)(2)(C).
In Regulatory Fundamentals Group v. Governance Risk Management Compliance, New York District Judge Katherine B. Forrest granted the plaintiff’s motion for sanctions and ordered that judgment be entered for the defendant’s “planned, repeated, and comprehensive” destruction of highly-relevant documents.
Thanks to the Google Alerts that I set up to send me new stories related to eDiscovery, I found an interesting blog post from an attorney that appears to shed light on an archival bug within Twitter that could affect people who may want to retrieve Twitter archival data for eDiscovery purposes.
In Novick v. AXA Network, LLC, New York Magistrate Judge Kevin Nathaniel Fox granted the plaintiff’s request for sanctions against the defendant, awarding an adverse inference jury instruction for several weeks of spoliated audio recordings and also awarding “reasonable attorney's fees and costs” associated with the motion as well as retaking several depositions.
When a file is “deleted” (i.e., actually deleted, not just moved to the Recycle Bin), the data for that file isn’t actually removed from the disk (in most cases). So, where does it go? Let's find out.
When litigation hits, key activities to get a jump on the case include creating a list of key employees most likely to have documents relevant to the litigation and interviewing those key employees, as well as key department representatives, such as IT for information about retention and destruction policies. These steps are especially important as they may shed light on custodians you might not think about – the departed.
In Riley v. Marriott Int’l, New York Magistrate Judge Marian W. Payson agreed with the plaintiffs that spoliation of data had occurred when the defendant failed to preserve video surveillance and “sweep logs” after one of the plaintiffs slipped and fell in the defendant’s hotel garage and that the defendant was at least grossly negligent for not preserving the information. However, the judge denied the plaintiffs request for summary judgment, granting an adverse inference instruction instead.
In Small v. University Medical Center of Southern Nevada, Special Master Daniel B. Garrie, calling the defendant’s widespread failure to preserve data a “mockery of the orderly administration of justice”, recommended that the court enter an order of default judgment, along with further sanctions, in favor of the plaintiffs.
A new self-assessment resource from EDRM helps you answer that question. A few days ago, EDRM announced the release of the EDRM eDiscovery Maturity Self-Assessment Test (eMSAT-1), the “first self-assessment resource to help organizations measure their eDiscovery maturity”. Find out more about it here.
In Mazzei v. Money Store, New York Magistrate Judge Ronald L. Ellis granted the plaintiff’s motion for spoliation sanctions against the defendant, ordering the defendant to bear the cost of obtaining all the relevant data in question from a third party as well as paying for plaintiff attorney fees in filing the motion.
When we launched nearly four years ago on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis. Now, after doing so each business day, I’m happy to announce that today is our 1,000th post on eDiscovery Daily! Check out what we've covered over 1,000 posts!
In Automated Solutions Corp. v. Paragon Data Sys., Inc., the Sixth Circuit court affirmed the holdings of the district court, rejecting the plaintiff’s arguments that the district court abused its discretion by denying plaintiff’s motion for spoliation sanctions due to defendant’s failure to preserve information on a hard drive and server. The circuit court also affirmed the ruling by both the magistrate and district judge that the defendant’s back-up tapes were not subject to the duty to preserve.
In Kyko Global Inc. v. Prithvi Info. Solutions Ltd., Washington Chief District Judge Marsha J. Pechman ruled that the defendants’ did not waive their attorney-client privilege on the computer of one of the defendants purchased by plaintiffs at public auction, denied the defendants’ motion to disqualify the plaintiff’s counsel for purchasing the computer and ordered the plaintiffs to provide defendants with a copy of the hard drive within three days for the defendants to review it for privilege and provide defendants with a privilege log within seven days of the transfer.
In Brookshire Bros., Ltd. v. Aldridge, the Supreme Court of Texas determined “that imposition of the severe sanction of a spoliation instruction was an abuse of discretion” in the trial court, reversed the court of appeals' judgment and remanded the case for a new trial.
In Brown v. Tellermate Holdings, Magistrate Judge Terence Kemp granted plaintiffs’ motion for judgment and motion to strike, ruling that the defendant could not “present or rely upon evidence that it terminated the Browns' employment for performance-related reasons” and enabling the plaintiffs to use documents produced by the defendant “designated as attorneys'-eyes-only” to be used by the plaintiffs “without restriction”, due to the defendant’s failure to preserve or produce data from their Salesforce.com database.
In the case In re Text Messaging Antitrust Litig., Illinois District Judge Matthew F. Kennelly not only denied the plaintiffs’ request for an adverse inference sanction against the defendants for destroying emails, but also granted the defendants’ motion for summary judgment, as the plaintiffs failed to provide any supporting circumstantial evidence to meet their burden of proof.
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