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!

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


Continue Reading Southern District Reiterates the Critical Importance of Issuing a Litigation Hold and Grants Sanctions Against City and NYPD

The short answer is – maybe; if there is any possibility that the information contained on the phone may be relevant to the claim or defense of any party in the lawsuit.

In this action (Brown Jordan Int’l Inc. v. Carmicle, 2015 WL 6142885 (S.D. Fla. Oct. 19, 2015)), plaintiffs sued defendant in the United States District Court


Continue Reading Is Your Spouse’s Phone Subject to Production Under Federal Rule 45?

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. 


Continue Reading The Amendments to the Federal Rules of Civil Procedure, the Court of Appeals’ Pegasus Aviation Decision and What They Mean for New York Litigators

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


Continue Reading New York Court of Appeals Finally Speaks on Ediscovery Spoliation, But is it Now Out of Step with the Federal Courts?

Giuliani v. Springfield Township, No. 10-7518, 2015 U.S. Dist. LEXIS 74174 (E.D. Pa. June 9, 2015)

In the Third Circuit, mere negligence is not enough to support a claim of spoliation.

In this zoning dispute involving claims of civil rights violations and tortious interference with contractual relations, the court denied the plaintiffs’ request for spoliation sanctions where they could adduce


Continue Reading Mere Negligence Cannot Support a Spoliation Claim

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.


Continue Reading 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

HMS Holdings Corp. v. Arendt, 2015 N.Y. Slip Op. 50750(U) (Sup. Ct. May 19, 2015).

In this lawsuit, HMS alleged that the defendants – former employees – misappropriated confidential information, including trade secrets, on behalf of their new employee, Public Consulting Group (“PCG”).  When the lawsuit began, PCG promptly issued a legal hold notice to certain of its employees,


Continue Reading BAR Members Behaving Badly!

In the latest of a string of decisions relating to ediscovery spoliation, the First Department, on Jun 11, 2015, reconfirmed a basic principal of a spoliation motion: the party seeking sanctions must demonstrate that the spoliated materials were relevant to their case.  This requirement must be satisfied even if the spoliation was caused by gross negligence.

In AJ Holdings Group


Continue Reading Still Need to Demonstrate Spoliated Materials Were Relevant

AJ Holdings Grp. LLC v. IP Holdings, LLC, No. 600530/2009 (N.Y. Sup. Ct. Sept. 19, 2014) reversed by AJ Holdings Group LLC v IP Holdings LLC et al., (2015 NY Slip Op 04943 [1st Dept 2015]).

In this breach of licensing agreement dispute, the Defendants sought spoliation sanctions against the Plaintiff.  The sought-after sanctions included striking the complaint,
Continue Reading Plaintiffs’ Failure to Preserve Leads to Two Adverse Inferences