On August 1, 2018, Judge Beetlestone (E.D. Pa.) granted Defendants’ motion for sanctions based upon unequivocal evidence that Plaintiffs manipulated and fabricated emails material to the litigation. Although the Court imposed the drastic sanction of dismissing Plaintiffs’ complaint, the Court provided a detailed and instructive analysis supporting its ultimate conclusion. The Court’s analysis, addressed below,
The Dangers of Counsel Not Being Active Participant in the Discovery Process
Angela Lawrence (“Lawrence”) was a plaintiff in a civil rights action that alleged officers of the New York City Police Department (“NYPD”) entered her home in August 2014 without a warrant, pushed her to the ground, damaged her property, and stole $1,000 in cash. In September 2016, Lawrence provided photographs to her attorney (“Leventhal”) that
The Perils of Self-Collection
“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.
The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside). For example, outside counsel issues a
Is a $2.7 Million Dollar E-Discovery Sanction Appropriate In a Lawsuit Valued at $20,000? The Second Circuit Says, Yes.
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
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
Litigation Hold Notices Should Not Cloak the Recipient With Discretion Over What Documents to Preserve
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
In the SDNY, a Party Is Sanctioned for the Preservation Failures of a Third-Party
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
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
Your Litigation Hold Must be Generally Broad And Specifically Tailored
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
Surreptitious Cyber-Conduct results in New York County Decision Striking Defendant’s Answer
In a decision dated May 26, 2017, Justice Chan of the Supreme Court of the State of New York, New York County, struck the defendant’s answer. Although the Court acknowledged that the imposition of this particular sanction was “severe,” Justice Chan deemed it warranted in light of the “egregious” and deliberate misconduct of the defendant.