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
Preservation
“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…
No Internal Investigation Is Complete Without ESI

When allegations of employee misconduct are alleged, companies must respond swiftly. Indeed, “insider threats” can cause significant damage to a company. These threats come in many different forms, including:
- Accounting fraud;
- Theft of assets;
- Unauthorized access to or manipulation of data; and
- Threats, sexual harassment or other inappropriate forms of behavior or communication.
And so,…
Self-Collecting ESI Can Be a Dangerous Game

The Honorable Shira Scheindlin once opined against allowing custodians of ESI to collect their data stating “[s]earching for an answer on Google (or Westlaw or Lexis) is very different from searching for all responsive documents in the FOIA or e-discovery context…” and “most custodians cannot be ‘trusted’” to effectuate a legally sufficient collection. National Day …
Defensible Data Destruction is a Must

Data destruction is the process of removing information in a way that renders it unreadable (paper) or irretrievable (digital data). And, while it is critically important for companies to manage data in a way that is effective, defensible, and efficient, people/companies are often hesitant to dispose of data. The cause of the hesitance is varied: …
How to Defensibly Limit Data During Discovery

Technology has revolutionized, among other things, the way people conduct business, store information and communicate with others. And, despite the many efficiencies and benefits of technology, a downside of this “revolution” is the creation of countless files that may later be subject to review and potential production during litigation /investigation proceedings. Indeed, even relatively small…
The Document Demand That Seeks Electronically Stored Information

Electronically stored information (“ESI”) is ubiquitous and most people and companies are utilizing paperless documents in some form (i.e., e-mails, text messages, IMs). The many forms of ESI coupled with the introduction of varying data sources such as smartphones, cloud storage, iPads, and tablets, has dramatically expanded the available potential sources of discovery in a…
What Is E-Discovery?

I am often asked by clients and subscribers to the blog, What is E-discovery? And so, this week’s post is intended to respond to that question.
E-discovery is the abbreviated term for electronic discovery and refers to the process in which electronic data (as compared to paper or object information) is sought, located, secured, reviewed…
Text Messages Must be Preserved

Whether we like it or not, a reality of today’s world is that often important business is conducted by text messages. And so, when it is time to issue a litigation hold notice, you must include an instruction to preserve text messages as well as the devices from which they are sent/received (i.e., smartphones). Your…
Cases Involving Emoticons As Evidence Are On the Rise

Approximately, one year ago, I authored a blog about emoticons finding their way into the courtroom as purported evidence of a crime or tort (Texter Beware: Emojis as Evidence). Although emoticons began appearing in court in 2004, their presence has risen exponentially. In fact, just last month, Eric Goldman of the Santa Clara…