Bursztein v Best Buy Stores, L.P., (2021 WL 1961645 [SD NY 2021]) involves a personal injury lawsuit arising from plaintiff Perla Bursztein’s slip and fall accident in a New York City Best Buy store.
During discovery, Bursztein requested: (i) video surveillance footage of the accident; (ii) maintenance, and repair records for the location of the accident; and (iii) Best
Continue Reading Boilerplate Objections and Discovery Games Require Little Effort but Result in Big Sanctions
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
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.”
Yikes! No practitioner wants to be on the receiving end of a decision that starts with the title of this post. And yet, that’s precisely how Magistrate Judge Bloom started her decision in Abbott Laboratories v. Adelphia Supply USA (15 cv 5826 [CBA] [LB]), ECF No. 1545 . Abbott serves as an important reminder to practitioners that we need to
Continue Reading A Cautionary Tale About How Not to Conduct Discovery in Federal Court
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, can be read in full
Continue Reading Court Dismisses Plaintiff’s Complaint As Sanction for Doctored Emails
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 she claimed depicted the condition
Continue Reading The Dangers of Counsel Not Being Active Participant in the Discovery Process
“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 litigation hold notice identifying various
Continue Reading The Perils of Self-Collection
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.
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?
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