Ephemeral messaging applications are considered solutions for data protection and privacy concerns (Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging). However, courts are wary of ephemeral messaging applications given they can empower a litigant to avoid discovery obligations. A recent decision from the District Court for the District of Arizona, details the consequences of using
Continue Reading Court Sends Signal to Parties Who Spoliated Documents Using Ephemeral Messages
Fit For Discovery: The Discoverability of Wearable Devices
It is estimated that more than 100 million people are wearing an Apple Watch* and another approximately 31 million people are using the Fitbit.** It is further predicted that sales and use of these devices will continue to grow. And so, as people increasingly look for wearables that both “make technology more personal” and include a “cool factor”
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Just When You Thought You Understood ESI…
Riddle me this: Is a document that resides on your network and which you embed in an email via a hyperlink the functional equivalent of an attachment to that email?
Magistrate Judge Katherine H. Parker, in a recent decision out of the Southern District of New York (Nichols v. Noom, Inc., No. 20-CV-3677 (LGS) (KHP) (S.D.N.Y. Mar. 11, 2021)
Continue Reading Just When You Thought You Understood ESI…
When Does My Duty to Preserve End?
Generally, a litigation hold letter* will issue to preserve documents and information potentially relevant to a reasonably anticipated lawsuit. However, when does one’s duty to preserve potentially relevant documents end? Unfortunately, the answer is not necessarily when the litigation ends. Indeed, a recent decision out of California reminds us there may be instances when one’s preservation obligations are ongoing, even
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Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations
Historically, the legal profession has been reluctant to embrace technology and electronic discovery in the practice of law. Indeed, practitioners often still exchange discovery in paper format or ignore, altogether, medium, like text messages, that may be repositories of relevant information. A recent case — In DR Distributors, LLC v 21 Century Smoking, Inc. – is an example supporting the
Continue Reading Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations
Is Your Zoom-Bombed Meeting Discoverable?
As the pandemic continues and businesses adapt to the realities of virtual workforces, the “Zoom-Bombing” pranks housemates played on one another are a thing of the past.* Rather, we now must confront the discovery implications this virtual shift presents. For example, the increased use of virtual platforms, replete with recording features, may expose a litigant to discovery obligations beyond
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“You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”
The duty to preserve potentially relevant evidence – documentary or electronic – arises when a lawsuit is reasonably anticipated. Although this is a subjective standard, Parlux Fragrances, LLC et al v. S. Carter Enterprises, LLC et al. illustrates a recent decision where a court imposed sanctions and an adverse inference because the defendants failed to preserve information after receipt of
Continue Reading “You Can’t Heal What You Never Reveal”: Plaintiffs Are Entitled to Sanctions and Adverse Inference at Trial Because Jay-Z and S. Carter Enterprises Destroyed Emails After Litigation Was “Reasonably Anticipated.”
An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails
According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was the franchisee of three Cold Stone Creamery Inc. ice cream parlors. In 2006, the three stores suffered financial difficulties due to an extended
What is a Data Map, Anyway?
When dealing with a lawsuit that inevitably will require the production of electronically stored information (“ESI”), one of the first things we (as counsel) have to do is figure out where that ESI resides. But how, exactly, does one begin to determine where responsive data exists? Well, consider the client’s data map.
Some of you may be thinking, what the
Sanctions Inappropriate When Failure to Preserve is the Result of Prior Court Order
Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)
In this collective action seeking unpaid wages, overtime and other relief, Plaintiffs moved pursuant to Federal Rule of Civil Procedure (“FRCP”) 37 for spoliation sanctions attributable to Defendants’ failure to preserve, and ultimately produce certain relevant employment-related evidence, including, for example payroll records and
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