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

Mueller v. Swift, (D. Col. 2017) 2017 WL 2362137

Some opinions just have it all, and Mueller v. Swift does not disappoint!  Indeed, in this lawsuit, Taylor Swift, the pop sensation who has been sweeping the nation, alleges she was the victim of sexual misconduct, assault, and battery.

What in the world do such allegations have to do with
Continue Reading Taylor Swift and the Java-Dump: An E-Discovery Tale

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


Continue Reading An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails

In Hsueh v. N.Y. State Dep’t of Fin. Servs., (No. 15 Civ. 3401 [PAC], 2017 WL 1194706 [S.D.N.Y. Mar. 31, 2017]) the Southern District imposed spoliation sanctions (specifically, an adverse inference) on the plaintiff in a sexual harassment case, because of her intentional deletion of a recorded conversation relevant to her allegations.  While the court deemed the recording ESI, it


Continue Reading Court’s Inherent Sanction Powers – Not Rule 37(e) – Govern when Relevant Information (ESI included) is Intentionally Deleted

In Arrowhead Capital Fin. Ltd. v. Seven Arts Entertainment, Inc. 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), District Judge Katherine Polk Failla imposed significant sanctions upon both the Chief Executive Officer (“CEO”) and the lawyer for defendant Seven Arts Entertainment Inc. (“SAE”).

Background

Arrowhead Capital Finance, Ltd. (“Arrowhead”) sued SAE in 2014 seeking to enforce a judgment


Continue Reading Client’s Bad Behavior Imputed to Counsel – Both Get Sanctioned

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)

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

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


Continue Reading Lightning Strikes and Power Surges Insufficient to Insulate Defendant from Discovery Sanctions