Archives: Preservation

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Lack Of Prejudice Precludes Sanctions Following Automatic Deletion Of Emails

Contributing Author: Kathryn B. Moynihan Magistrate Judge Iain D. Johnston recently held that sanctions were not warranted under Fed. R. Civ. P. 37(e) against a defendant who admitted to erroneously destroying electronically stored information (ESI). While the court did not condone the defendant’s actions (describing them as “disturbing”), it reasoned that the ESI “did not … Continue Reading

Preservation Of ESI Is Still Paramount Under New Rule 37(e)

Magistrate Judge Paul M. Warner recently decided that sanctions, including attorney’s fees and costs, were appropriate as a result of evidence of a defendant’s failure to preserve relevant electronically stored information (“ESI”) after receiving a preservation letter from the plaintiff in a wrongful death action. At issue in McQueen v. Aramark Corp., 2016 U.S. Dist. LEXIS … Continue Reading

Experts Praise Ralph Losey’s New Book: E-DISCOVERY FOR EVERYONE

Jackson Lewis’ National e-Discovery Counsel, Ralph Losey, has just released a new book, e-Discovery for Everyone. Experts are praising e-Discovery for Everyone as an important book for both pleasure and reference. As the title suggests, Ralph’s book is written for everyone with an interest in e-discovery. It is classified by the ABA as an introductory to intermediate level book. … Continue Reading

Court Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.  In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer … Continue Reading

May A Company “Preserve In Place” To Satisfy Its Preservation Obligations

A common question that often arises is whether to physically collect/copy a person’s e-mail account once that person is placed on a litigation hold.  Rather than copy the e-mail account, many companies will simply turn off the “auto-delete” function and issue the employee a preservation notice. By doing so, the company essentially is preserving in place.  … Continue Reading

Manufacturer Faces ‘Adverse Inference’ Instruction To Jury For Failing To Preserve Relevant E-Mails

Finding the defendant, Implant Direct Mfg., LLC, had a culpable state of mind in failing to preserve documents relevant to the claims against it, the federal District Court for the Southern District of California has granted Zest IP Holdings, LLC’s request for an adverse jury instruction against the defendant.  Zest IP Holdings, LLC v. Implant … Continue Reading

Discovery Difficulties Presented by Cloud Computing

In the age of cloud computing, electronically stored information (“ESI”) is no longer stored exclusively on physical drives or Facebook. Dropbox and Google Drive are programs (“apps”) that provide cloud storage services. A user can upload files to reserved space on a server from any computer, smartphone, or tablet connected to the Internet. The stored … Continue Reading

Evidence Preservation: An ancient legal doctrine that is still a major concern to all litigators

Preservation is an ancient, well-established common law doctrine. Armory v. Delamirie, 1 Strange 505, 93 Eng. Rep. 664 (K.B.1722) (chimney sweep boy and the missing diamond); Goodman v. Praxair Services, Inc. 632 F.Supp.2d 494, (D.Md. 2009) (Grimm, J.). Apparently the doctrine goes back even further to the days of Roman law. Ancient or not, the doctrine … Continue Reading

Court: ‘Preliminary Showing’ of Spoliation Required Before Discovery of Documentary Preservation Efforts Permitted

In Little Hocking Water Ass’n v. E.I. DuPont DeNemours & Co., 2013 U.S. Dist. LEXIS 134869 (S.D. Ohio Sept. 20, 2013), a federal district court declined to issue sanctions or permit additional discovery regarding the defendant’s preservation efforts because the plaintiff, Little Hocking, failed to provide sufficient evidence that the defendant spoliated evidence. Little Hocking … Continue Reading

Court May Impose Sanctions for Failure to Preserve Recording

In Hart v. Dillon Companies, Inc., the U.S. District Court in Colorado has ruled sanctions await defendants who fail to preserve relevant evidence—in this case a recording. The employer’s loss prevention officer (“LPO”) was investigating alleged misconduct by a 21-year-old employee. The LPO had surreptitiously taped his interview with the employee, which included the employee’s … Continue Reading

Facebook’s “Hacker Way” of Management and e-Discovery

Facebook’s regulatory filing for its initial public stock offering included a letter to potential investors by 27 year old billionaire Mark Zuckerberg. The letter describes the culture and approach to management that he follows as CEO of Facebook. Most high-tech companies today follow this same management credo. Zuckerberg calls it the Hacker Way. Mark did not invent this culture. … Continue Reading

Court Finds No Spoliation (or Sanctions) For Deleted E-Mails

In a hostile work environment and discrimination case, a federal court in Nevada found the deletion of e-mails pursuant to the employer’s routine auto-delete policy did not warrant sanctions.  Hixson v. City of Las Vegas, No. 2:12-cv-00871-RCJ-PAL (D. Nev. July 11, 2013).  The Court reasoned that the duty to preserve had not yet arisen when the employer’s automatic … Continue Reading


In a decision showing the importance of ESI preservation efforts, Ohio’s Court of Appeals has upheld a lower court’s order imposing sanctions against the owner of a nursing home for the unexplained missing hard drive from the computer of its former CEO.  Altercare Inc. v. Clark, 2013 Ohio 2785 (9th Dist. Ohio June 28, 2013). … Continue Reading

Plaintiff’s Backyard Summer BBQ of Her Computer Leads to Sanctions

Parties sometimes go to great lengths to avoid providing information during discovery. A case out of Mobile, Alabama, shows some people will even go so far as to burn their computer in a backyard BBQ. Evans v. Mobile Cnty. Health Dep’t, 2012 U.S. Dist. LEXIS 8530 (S.D. Ala. 2012). The plaintiff in this case was a former employee … Continue Reading

Fishing Expedition Discovers Laptop Cast into Indian River

There is a spot on the Indian River east of Orlando where the fish really byte. That’s because a defendant employee in a RICO case tossed her laptop into that river with millions of incriminating bits and bytes. Simon Property Group, Inc. v. Lauria, 2012 U.S. Dist. LEXIS 184638 (M.D. Fla. 2012). Defendant destroyed the evidence with … Continue Reading

Employer Gets Adverse Inference Sanction for Failing to Preserve Data

Finding the defendant-employer, Millard Refrigerated Services, permitted relevant data to be deleted after it was on notice of potential litigation, the court granted the plaintiff’s motion for sanctions and agreed to provide the jury an adverse inference instruction against the defendant. Pillay v. Millard Refrigerated Services, 2013 WL 2251727 (N.D. Ill. May 22, 2013). The plaintiff, … Continue Reading

Party Sanctioned for Deleting Facebook Account

Social media websites have become an increasingly important source of information in lawsuits.  This is especially true where a party is claiming that an injury prevents him or her from performing certain activities or that he or she is experiencing emotional distress.  A person’s posts on Facebook or similar social media websites provide a wealth … Continue Reading