Always Explain "Why" to the Judge

A Plaintiff brought a motion to compel “access to electronic records,” claiming the Defendants had “withheld electronically stored information” and had not produced a “chronological e-mail history of any kind.” Murray v. Coleman, 2012 U.S. Dist. LEXIS 130219, 1-3 (W.D.N.Y. Sept. 12, 2012). The Defense attorney claimed that the Defendant[…]

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Believing "Missing" Emails Exist Does Not Make Adverse Inference Sanctions Real

The Plaintiff in an employment discrimination lawsuit brought a motion for adverse inference jury instructions for the alleged destruction or suppression of email over a specific date range. The Plaintiff did not offer evidence of the email messages existence, only that he believed the email existed.   Omogbehin v. Cino, 2012[…]

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The Fabric of Inadequate Search & Spoliation Allegations

In a case involving claims of copyright infringement of fabric design, the tapestry of the Plaintiff’s discovery production was challenged, including allegations the Plaintiff: Neglected to search for and produce several categories of documents; and Deleted relevant emails. The Defendants sought an order permitting a forensic examination of Plaintiff’s computer[…]

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How to Get an eDiscovery Evidentiary Hearing

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI.  Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012). The litigation involved an employment dispute with claims of[…]

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A Standard for Undue Burden: Excruciating, But Highly Educational and Useful, Detail

Discovery Balancing Acts in a War Zone United States ex rel. McBride v. Halliburton Co., is a qui tam action over alleged fraudulent billing for services provided to the US military in Iraq.  The case involved inflated headcounts in Morale, Welfare and Recreation (“MWR”) facilities and fraudulent billing for those costs to[…]

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Nothing Says “Bad Faith” Like Throwing a Laptop off a Building

Is entering a default judgment against a party for destroying a laptop excessive and unduly harsh?  Not in Utah.  Daynight, LLC v. Mobilight, Inc., 2011 UT App 28, P2 (Utah Ct. App. 2011). Daynight involved a destroyed laptop and what was the appropriate sanction for the destruction of evidence.  Certainly[…]

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