On October 4, 2016, District Judge Jon S. Tigar issued an opinion every federal court practitioner should read (Rodman v Safeway, Inc., [11-cv-03003] [N.D. Ca.] [JST]). The decision serves as an important reminder that counsel has an obligation to assist their client when identifying and collecting electronic documents responsive to discovery demands. Indeed, it is not sufficient or defensible
Continue Reading Counsel’s Failure to be Meaningfully Involved with Client’s Discovery Collection Costs Client One Half Million Dollars in Discovery Sanctions
E-Discovery Update: ESI Sanctions in Federal Court During 2016 (Well, through July)
Federal Rule of Civil Procedure 37 (along with others — Rules 1, 16, 26 and 34) was amended, effective December 1, 2015.
The amendment to Rule 37(e) was intended, in part, to ensure practitioners/litigants were fully aware of their preservation obligations, to ensure a uniformity of sanctions imposed upon parties and practitioners who failed to preserve discoverable electronically stored information
Continue Reading E-Discovery Update: ESI Sanctions in Federal Court During 2016 (Well, through July)
Sanctions in Two New York Courts for Party’s Failures to Preserve
Recently, two separate New York courts (the First Department and the Southern District) issued decisions imposing sanctions upon litigants who failed to comply with preservation obligations. While a summary of those decisions and hyperlinks to the full decisions follow, attorneys should take heed that it is critical to timely and properly issue litigation hold notices when litigation is reasonably anticipated.
Continue Reading Sanctions in Two New York Courts for Party’s Failures to Preserve
Failure to Preserve Emails Results in Sanctions
We all know that it can be damaging to one’s case if a party to a litigation fails to preserve relevant information. But when, exactly, does one’s duty to preserve (potentially relevant information) arise? And what type of sanctions are federal courts imposing under the amended federal rules for preservation failures?
When Does One’s Duty to Preserve Arise?
Different jurisdictions
Continue Reading Failure to Preserve Emails Results in Sanctions
Lightning Strikes and Power Surges Insufficient to Insulate Defendant from Discovery Sanctions
In a trademark infringement case pending in the Northern District of California (InternMatch v. Nxtbigthing, 2016 WL 491483 [N.D. Cal. Feb. 8, 2016]), plaintiff requested copies of any documents relating to the defendants’ defense that it had continually and pervasively used the trademark at issue. The defendants were not able to produce many responsive documents and advised
The Christopher Carmicle Case – The Hits Keep Coming!
In Brown Jordan Int’l v. Carmicle, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016) – a case previously written about on February 11, 2016 the Court was required to determine whether certain actions taken by Christopher Carmicle (“Carmicle”), a high-ranking employee running two subsidiaries of an international furniture company, warranted termination of his employment for cause. In particular
Continue Reading The Christopher Carmicle Case – The Hits Keep Coming!
Southern District Reiterates the Critical Importance of Issuing a Litigation Hold and Grants Sanctions Against City and NYPD
As most of those reading this are aware, companies/entities/agencies doing business in the US generally are not required to indefinitely preserve business records and information. However, those companies/entities/agencies must preserve relevant information when a lawsuit or an investigation is reasonably anticipated. This duty stems from both the common law duty to prevent spoliation of evidence and certain state and federal
The Amendments to the Federal Rules of Civil Procedure, the Court of Appeals’ Pegasus Aviation Decision and What They Mean for New York Litigators
For a long time, New York state and federal courts were out of sync with one another with regard to a litigant’s discovery obligations. For example, the state courts in New York required a party to take steps to preserve discovery materials upon the commencement of a litigation, while the federal courts required preservation upon the reasonable anticipation of litigation.
New York Court of Appeals Finally Speaks on Ediscovery Spoliation, But is it Now Out of Step with the Federal Courts?
After sitting on the sidelines for years, the New York Court of Appeals (the highest appellate court in New York) has finally ruled on the standard to be applied to claims alleging spoliation of ESI. The decision, however, which was late in coming, places New York at odds with the new Federal Rules of Civil Procedure. This post will address
Don’t Use “Crap Cleaner” When a Motion to Compel Is Pending, and Other Lessons Learned, to Ensure You Don’t Get Hit With a Spoliation Sanction
Clear-View Technologies, Inc. v John H. Rasnick, et al (2015 U.S. Dist. LEXIS 63579), reads as a list of the things you do not want to do if you want to avoid spoliation sanctions. The underlying dispute involved the development of an alcohol tracking product, and certain shareholders’ alleged conspiracy to steal the technology and start a new company.