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?

In Kan-Di-Ki, LLC v. Suer (2015 WL 4503210 [Del. Ch. July 22, 2015]),  a case involving breach of contract claims, the plaintiff alleged that the defendant engaged in suppression and spoliation of evidence when the defendant deleted three sets of text messages and email chains pertaining to the foreseeable litigation between the parties. Plaintiff came to learn of the


Continue Reading Failure to Preserve Text Messages and Relevant Emails Lead to Sanctions

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

A recent decision from the United States District Court of the District of Connecticut demonstrates the need for proper custodian interview before responding to discovery requests. Electrified Discounters, Inc. v MI Technologies, Inc. (2015 U.S. Dist. LEXIS 64950) involved a dispute over sales of replacement lamps for rear projector televisions and front projectors, via online marketplaces like Amazon.com.

The plaintiff


Continue Reading You Really Should Check With Your Client Before Objecting to Discovery Requests

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

Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

In this collective action seeking unpaid wages, overtime and other relief, Plaintiffs moved pursuant to Federal Rule of Civil Procedure (“FRCP”) 37 for spoliation sanctions attributable to Defendants’ failure to preserve, and ultimately produce certain relevant employment-related evidence, including, for example payroll records and


Continue Reading Sanctions Inappropriate When Failure to Preserve is the Result of Prior Court Order

In an earlier post (SEE reference to my top 10 list), I noted the importance of issuing a timely and proper legal hold notice.  In case you failed to appreciate the critical importance of this step, a reading of the insurance case of Fidelity Nat. Ins. Co. v. Captiva Lake Invs., 2015 WL 94560 (E.D. Mo. Jan. 7,


Continue Reading Failure to Implement a Proper and Timely Legal Hold Notice Results in Plaintiff Being Sanctioned