In 2012, Klipsch Group Inc. (“Klipsch”), a manufacturer of sound equipment, filed a complaint against ePRO E-Commerce Ltd. (“ePRO”), alleging an ePRO subsidiary was selling counterfeit headphones. Through discovery demands, Klipsch called for the production of information relevant to the sale of the allegedly infringing product, including emails and specific sales data. Eventually, however, it became clear that ePRO was
Continue Reading Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.
Texter Beware: Emojis As Evidence
Imagine if the above emojis, casually fired off in a text message (or in an Instagram or Facebook post) to a friend or colleague, could be used against you as evidence of workplace harassment?
Or if another combination of cartoon-like representations of emotions could be used as proof of defamation?
Or if inclusion of a face emoji with its tongue
Continue Reading Texter Beware: Emojis As Evidence
A Cooperative Discovery Process Promotes Efficient Advocacy
In Youngevity Intl’s Corp. v. Smith (No: 16-cv-00704 [SD CA December 21, 2017]), defendants sought an Order pursuant to Federal Rules of Civil Procedure 26(g) and 37. The Order required Plaintiffs to remediate an improper discovery production to pay for Defendants’ costs for bringing the motion to compel and for the cost to review various improper prior productions. Specifically,
Continue Reading A Cooperative Discovery Process Promotes Efficient Advocacy
What is Predictive Coding and Should I Think About Using It?
You are involved in litigation and faced with a document review need, what now? Naturally you need to find attorneys to review these documents. To this end, depending on the volume of data at issue, many firms will either: (1) staff the document review with firm attorneys, or (2) work with a vendor to retain a review team comprised of
Continue Reading What is Predictive Coding and Should I Think About Using It?
The Perks and Perils of Self-Destructing Messages
What do applications like Snapchat, Telegram, Wickr, Cover Me, Speak On, and Whisper have in common? They are all self-destructing message (“SDM”) applications. What exactly does this mean, you ask? Self-destructing messaging applications transmit information with end-to-end encryption, and auto destruct after a set time period of time, or after receipt and access by the intended recipient. Consider Snapchat, for
Continue Reading The Perks and Perils of Self-Destructing Messages
When Are Redactions Based Upon Relevance (or, a Lack Thereof) Permissible?
In IDC Financial Publishing, Inc. v. Bonddesk Group, LLC (15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)), the Eastern District of Wisconsin granted IDC’s motion to compel the production of more than 600 documents that had previously been produced by Bonddesk with extensive non-responsive redactions applied.
Bonddesk argued that the applied redactions were necessary to protect confidential business
Continue Reading When Are Redactions Based Upon Relevance (or, a Lack Thereof) Permissible?
The New Rules of Federal Evidence Have Arrived
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
If Evidence in its Original Form Is No Longer Available – But a Copy of that Evidence Is – Are Spoliation Sanctions Appropriate?
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?
Cooperation and Competence are Critical, Concludes One Court
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
Practical Tips For an Effective Litigation Hold Notice
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