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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

Court Issues Warning To The Bar Regarding Use Of “Boilerplate” Discovery Objections

In Liguria Foods, Inc. v. Griffith Laboratories, Inc., Judge Mark Bennett of the United States District Court for the Northern District of Iowa required both plaintiff and defense counsel to show cause why they should not be sanctioned for discovery abuses based on the excessive use of “boilerplate” objections to discovery requests.  The issue arose when the … Continue Reading

California Court Compels Defendant to Re-Produce Electronically Stored Information in Format Requested by Plaintiffs

A California federal trial court has granted the plaintiffs’ motion to compel re-production of electronically stored information (“ESI”) in native format with all associated metadata, while also granting plaintiffs their “reasonable expenses” incurred, including attorneys’ fees, in making their motion.  In Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-3471 KJM AC … Continue Reading

Court Rules That Proportionality And Cooperation Are Essential In Resolving E-Discovery Disputes

Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims.  Instead, the Court directed the parties … Continue Reading

Lack Of Prejudice Results In Limited Sanction Against Defendant

In one of the first cases interpreting newly amended Fed. R. Civ. P. 37, F.T.C. v. DirecTV, Inc., 15-cv-01129-HSG, 2016 U.S. Dist. LEXIS 176873 (N.D. Cal. Dec. 21, 2016), Magistrate Judge Maria Elena James of the Northern District of California denied plaintiff’s motion to exclude spoliated evidence that was relied upon by defendant’s expert, reasoning … Continue Reading

Forensic Examination of Plaintiff’s Electronic Devices Disallowed Because It Was Not Proportional To The Needs of the Case

District Court Judge Jorge L. Alonso recently upheld Magistrate Judge Michael T. Mason’s ruling in a sex discrimination and hostile work environment case that forensic examination of a plaintiff’s electronic devices was not proportional to the needs of the case because any benefit the inspection might provide would be outweighed by the plaintiff’s privacy and … 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

Marginal Discovery Disallowed Because It Was Not Proportional To The Needs Of The Case

Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices. The decision is notable … Continue Reading

ESI Lost After Duty To Preserve Had Been Triggered Results In Limited Sanction Under New Rule 37(e)

A federal court in Utah recently applied the newly amended Rule 37(e) and, in doing so, issued relatively limited sanctions following a finding of spoliation.   In First American Title Insurance Company, et al v. Northwest Title Insurance Agency, et al, No. 2:15-cv-00229, 2016 U.S. Dist. LEXIS 118377 (D. Utah, Aug. 31, 2016), the plaintiff, First … Continue Reading

A Party May Comply With Rule 34 By Identifying Its Search Parameters As Opposed To Identifying Withheld Documents

According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under  Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld. In Rowan … Continue Reading

District Court in Washington D.C. Exposes Illegal e-Discovery by Department of Justice

U.S. Magistrate Judge John M. Facciola in Washington D.C., who is a well-known expert in e-discovery, issued a Memorandum Opinion and Order dated March 7, 2014, containing a stunning rebuke of the Department of Justice. His order reveals that the Department of Justice has been routinely using over-broad search warrants for email. The warrants allow the Department to … 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

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

More Courts Are Requiring Disclosure of Keywords

There is a clear trend in the law for a producing party to make disclosure of the keywords used to find documents responsive to a request for production. Moreover, all the requesting party has to do is ask. There is no requirement for a showing of good cause. This represents a further erosion of the … Continue Reading

Controlling e-Discovery Abuses with Rule 26(g)

Rule 26(g) of the Federal Rules of Civil Procedure (often called the Rule 11 of discovery) governs an attorney’s signature on discovery responses. A judge must impose sanctions if Rule 26(g) is violated. In spite of the rule’s requirement, we have not seen a sanction imposed under this rule…until now. U.S. Magistrate Judge Susan Gauvey … Continue Reading