Knotty Issues of eDiscovery
Discovery gamesmanship is annoying. A party failing to produce email is obnoxious. Can a party that fails to produce four emails that were available from other sources be grounds for sanctions? In a contract dispute over whether there were grounds to terminate a master service agreement, the Requesting Party sought[…]
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A professional photographer took a photo of Willie Nelson at a concert in 2009. The photographer posted the photo on Wikipedia and allowed others to post the image provided they complied with the terms of the Creative Commons Attribution 2.0 Generic License. Funny how time slips away, but in April[…]
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Judge William Alsup’s Waymo v Uber order is epic Rule 37(e) analysis. The opinion has a substantial amount of detail and legal analysis. There are numerous issues in play and the Court logically addressed them with the precision that Judge Alsup is legendary known for in complex cases. In a[…]
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Preparing a successful motion for spoliation over lost ESI is like preparing a fine meal. Attorneys can find themselves in the role of a master chef, who needs to mix exotic ingredients to win over a food cretic. Except for the attorney, that food cretic is a judge and the[…]
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The 2015 Amendments to Federal Rule of Civil Procedure Rule 37(e) added two pivotal requirements to sanction a party for the loss of ESI: First, ESI must be lost after a duty to preserve. Second, the party that lost the ESI had to act with an “intent to deprive” the[…]
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The 2015 Amendments to the Federal Rules of Civil Procedure fundamentally altered spoliation of evidence cases with requiring wronged parties to prove ESI was lost with an “intent to deprive.” If a party can prove there was “intent” with the destruction of ESI, then a court may “’presume that the[…]
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Parties seeking sanctions for lost electronically stored information have been before Federal Judges for nearly a decade. The 2015 Amendments to Federal Rule of Civil Procedure Rule 37(e) requires that a party seeking sanctions must show there was an “intent to deprive” them of the lost ESI. Two recent cases[…]
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Published California eDiscovery cases are as rare as California Condors. However, unpublished California opinions provide a lot of insight in how judges see eDiscovery issues in state court. Flagship Theatres of Palm Desert is a California case regarding spoliation of email messages and the preservation of evidence. Even though it[…]
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We have a new case applying Federal Rule of Civil Procedure Rule 37(e): Living Color Enterprises v New Era Aquaculture. My thanks to attorney Chris Dix from the law firm of Smith, Hulsey, & Busey for sending me this case. Chis joined me for a podcast to discuss the case,[…]
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The City of New York, 50 unnamed NYPD officers, and the former NYPD Commissioner are involved in a civil rights lawsuit over allegedly issuing summonses without probable cause, violating the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, if true. The City was found to be grossly[…]
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