Ephemeral messaging applications are considered solutions for data protection and privacy concerns (Blink, And I’m Gone: E-Discovery Challenges and Considerations With Ephemeral Messaging). However, courts are wary of ephemeral messaging applications given they can empower a litigant to avoid discovery obligations. A recent decision from the District Court for the District of Arizona, details the consequences of using
Continue Reading Court Sends Signal to Parties Who Spoliated Documents Using Ephemeral Messages
When Does My Duty to Preserve End?
Generally, a litigation hold letter* will issue to preserve documents and information potentially relevant to a reasonably anticipated lawsuit. However, when does one’s duty to preserve potentially relevant documents end? Unfortunately, the answer is not necessarily when the litigation ends. Indeed, a recent decision out of California reminds us there may be instances when one’s preservation obligations are ongoing, even
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Court Enforces Strict Sanctions for Failing to Be Competent in ESI Obligations
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
“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.”
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.”
No Internal Investigation Is Complete Without ESI
When allegations of employee misconduct are alleged, companies must respond swiftly. Indeed, “insider threats” can cause significant damage to a company. These threats come in many different forms, including:
- Accounting fraud;
- Theft of assets;
- Unauthorized access to or manipulation of data; and
- Threats, sexual harassment or other inappropriate forms of behavior or communication.
And so, when a threat is perceived
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Spoliation of Evidence: When a Litigation Hold is no Longer Privileged
In New York, it is widely recognized that the duty to preserve documents arises once a party “reasonably anticipates litigation” (see Voom HD Holdings LLC v EchoStar Satellite, 93 AD3d 33, 41-42 [1st Dept 2012]). And so, issuing timely a litigation hold notice is critical for preserving information relevant or potentially relevant to an actual or threatened litigation.
Continue Reading Spoliation of Evidence: When a Litigation Hold is no Longer Privileged
Text Messages Must be Preserved
Whether we like it or not, a reality of today’s world is that often important business is conducted by text messages. And so, when it is time to issue a litigation hold notice, you must include an instruction to preserve text messages as well as the devices from which they are sent/received (i.e., smartphones). Your failure to do so can
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A Lawyer’s Obligation to be Technologically Competent – Part 4
This is the 4th and final blog in a multi-part blog discussing various critical requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1, here to read Part 2, and here to read Part 3].
You have assessed the discovery needs of your matter, implemented
Continue Reading A Lawyer’s Obligation to be Technologically Competent – Part 4
A Lawyer’s Obligation to be Technologically Competent – Part 2
This is Part 2 in a multi-part blog discussing various core requirements that can serve as the road map to allow a lawyer to fulfill his/her duty of technological competence. [Click here to read Part 1]
2. Implement Appropriate Preservation Procedures
ESI spoliation remains a real issue that lawyers must confront. The best way to prevent spoliation is to take
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The Rule 26 Conference: Necessary Evil or Critical for Streamlined and Efficient Discovery?
Often viewed as a necessary evil, the Rule 26(f) conference can serve as an invaluable opportunity to meaningfully discuss discovery such that the process is streamlined and seeks to avoid unnecessary (and often costly) disputes. Generally speaking, Rule 26(f), among other things, sets the deadline for the conference as soon as practicable and at least 21 days before the scheduling
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