Earlier this year, I wrote about the then-proposed changes to the Federal Rules, and how those changes (if implemented), could impact electronic discovery. (February 15, 2017 blog) Well, the time has come — effective December 1, 2017, the amendments to Federal Rule of Evidence 902 “Evidence That is Self Authenticating” went live.
As the title suggests, Federal Rule
Continue Reading The New Rules of Federal Evidence Have Arrived
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 intellectual property claims against Defendant Coed Media Group, LLC (“CMG”). The claims related to the allegedly infringing use of certain celebrity photographs (the “Images”) on CMG’s pop
Continue Reading If Evidence in its Original Form Is No Longer Available – But a Copy of that Evidence Is – Are Spoliation Sanctions Appropriate?
United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)
This case, which arises from allegations of pay discrimination by New Mexico State University (“NMSU”) based on gender, in violation of Title VII, serves as an important reminder that all counsel – irrespective of one’s computer know-how – understand their ESI obligations and
Continue Reading Cooperation and Competence are Critical, Concludes One Court
In past blogs, I have discussed the importance of issuing a litigation hold notice (“Hold”), as soon as a litigation is reasonably anticipated. I have also written about various best practices when drafting one’s Hold. [See Practical Tips For an Effective Litigation Hold Notice and Your Litigation Hold Must be Generally Broad And Specifically Tailored]. In an effort
Continue Reading Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve
Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)
In this case, the Southern District of New York imposed an adverse inference against defendants for their failure to preserve text messages that were in the possession of a non-party. Specifically, Judge Sweet imposed an adverse inference against defendants based
Continue Reading In the SDNY, a Party Is Sanctioned for the Preservation Failures of a Third-Party
Despite the existence of a stipulated clawback agreement (that was never presented to the Court to be So Ordered) that provided “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the Court found defendants’ claim to privilege was waived by the inadvertent and “completely reckless” production of privileged materials. In reaching its conclusion, the Court
Continue Reading Oops I Did It Again — Court Rules that Two Separate Productions of the Same Privileged Materials Was Completely Reckless
I recently wrote about the importance of styling one’s litigation hold in a broad, but sufficiently specific way (See, “Your Litigation Hold Must be Generally Broad and Specifically Tailored”). Some of you may be thinking, well, that’s all fine and good but what is a litigation hold? Why and when do I need one? And what should
Continue Reading Practical Tips For an Effective Litigation Hold Notice
In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”). The Agreement was presented to the Court and represented to be the product of mutual negotiation.
Continue Reading Because the Court Concluded Plaintiff’s Counsel Failed to Engage in Meaningful Meet and Confer, Court Orders Counsel (not the Plaintiff) to Bear the Costs of Production
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 (“Puma”) failure to preserve (or identify in its litigation hold notice the need to preserve) internet web browser and search histories. In denying Eshelman’s request, Judge Jones
Continue Reading Your Litigation Hold Must be Generally Broad And Specifically Tailored
Mueller v. Swift, (D. Col. 2017) 2017 WL 2362137
Some opinions just have it all, and Mueller v. Swift does not disappoint! Indeed, in this lawsuit, Taylor Swift, the pop sensation who has been sweeping the nation, alleges she was the victim of sexual misconduct, assault, and battery.
What in the world do such allegations have to do with
Continue Reading Taylor Swift and the Java-Dump: An E-Discovery Tale