Spoliation

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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…

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,…

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…

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…

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…

On August 1, 2018, Judge Beetlestone (E.D. Pa.) granted Defendants’ motion for sanctions based upon unequivocal evidence that Plaintiffs manipulated and fabricated emails material to the litigation.  Although the Court imposed the drastic sanction of dismissing Plaintiffs’ complaint, the Court provided a detailed and instructive analysis supporting its ultimate conclusion.  The Court’s analysis, addressed below,…

“Self-collection” refers to the situation in which the custodians of information potentially relevant to a legal proceeding undertake to identify and collect that information on their own and provide the collected content to counsel.

The typical self-collection situation involves some limited instruction or oversight from counsel (in-house or outside).  For example, outside counsel issues a…

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…