Earlier this summer, the California State Bar formally addressed the ethical obligations of counsel to be competent in matters of e-discovery and specifically established standards for counsel practicing in California. (Formal Opinion No. 2015-193). The Bar stated, “[e]lectronic document creation and/or storage, and electronic communications, have become commonplace in modern life…attorneys who handle litigation may not ignore the
When Do Contract Attorneys “Practice Law”?
On July 23, 2015, the Second Circuit, in Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, Tower Legal Staffing, Inc., revived (see our earlier blog posts dated March 11, 2015) a putative collective action brought by David Lola, a contract attorney, against Skadden Arps and Tower Legal Staffing, Inc., alleging violations of the overtime provisions of
Failure to Preserve Text Messages and Relevant Emails Lead to Sanctions
In Kan-Di-Ki, LLC v. Suer (2015 WL 4503210 [Del. Ch. July 22, 2015]), a case involving breach of contract claims, the plaintiff alleged that the defendant engaged in suppression and spoliation of evidence when the defendant deleted three sets of text messages and email chains pertaining to the foreseeable litigation between the parties. Plaintiff came to learn of the
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Mere Negligence Cannot Support a Spoliation Claim
Giuliani v. Springfield Township, No. 10-7518, 2015 U.S. Dist. LEXIS 74174 (E.D. Pa. June 9, 2015)
In the Third Circuit, mere negligence is not enough to support a claim of spoliation.
In this zoning dispute involving claims of civil rights violations and tortious interference with contractual relations, the court denied the plaintiffs’ request for spoliation sanctions where they could adduce
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Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction
Themis Bar Review, LLC v. Kaplan, Inc., WL 3397877 (S.D. Cal. May 26, 2015).
In this action, defendant served plaintiff with a request for production that sought, among other things, documents related to the plaintiff’s pass rate and the data substantiating the pass rates posted in the plaintiff’s advertising materials. The plaintiff produced the relevant data in a
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BAR Members Behaving Badly!
HMS Holdings Corp. v. Arendt, 2015 N.Y. Slip Op. 50750(U) (Sup. Ct. May 19, 2015).
In this lawsuit, HMS alleged that the defendants – former employees – misappropriated confidential information, including trade secrets, on behalf of their new employee, Public Consulting Group (“PCG”). When the lawsuit began, PCG promptly issued a legal hold notice to certain of its employees
The Importance of a Cooperative Discovery Process
In a previous post we discussed generally the idea of a cooperative discovery process and highlighted how the proposed amendments to the Federal Rules embrace this principal (see, e.g., proposed amendments to Federal Rule Civil Procedure [“FRCP”] 1). Here, we discuss how the concept of a cooperative discovery process– even apart from the specific mandates in the FRCP –
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SCOTUS Endorses New FRCP
As those of you reading this well know, many studies and decisions show continued dissatisfaction with the discovery process. Remedies to this dissatisfaction that have gained traction are the ideas of cooperation, proportionality and reasonableness in the discovery process – the very themes that lay at the heart of the proposed amendments to the Federal Rules.
On April 29, 2015
Plaintiffs’ Failure to Preserve Leads to Two Adverse Inferences
AJ Holdings Grp. LLC v. IP Holdings, LLC, No. 600530/2009 (N.Y. Sup. Ct. Sept. 19, 2014) reversed by AJ Holdings Group LLC v IP Holdings LLC et al., (2015 NY Slip Op 04943 [1st Dept 2015]).
In this breach of licensing agreement dispute, the Defendants sought spoliation sanctions against the Plaintiff. The sought-after sanctions included striking the complaint,
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Magistrate Judge Peck’s Recent Decision on the Use of Predictive Coding and the Cooperative Obligations Involved
A little more than three years ago, federal Magistrate Judge Andrew J. Peck (SDNY), issued a seminal decision in Da Silva Moore v. Publicis Groupe & MSL Group, 11 Civ. 1279 (February 24, 2012). Indeed, in that ruling, Judge Peck sent a message that predictive coding and computer assisted review is an appropriate tool that should be “seriously
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