Knotty Issues of eDiscovery
Parties who reasonably foresee litigation must preserve ESI that is relevant to the possible lawsuit. Identifying the individuals, subject matter, date range, are the first steps in determining the scope of the duty to preserve. In an EEOC case over age discrimination, a missing letter from an EEOC investigator and[…]
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Lawyers are eagerly awaiting Courts to start their engines applying the new Federal Rule of Civil Procedure Rule 37(e) for sanctions against a party that failed to preserve ESI. However, the case of Bruner v. Am. Honda Motor Co, is a healthy reminder that Courts will keep ordering parties to enact litigation holds.[…]
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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,[…]
Read moreThere is no question that automotive product liability litigation is complex. However, self-collection is never a good idea. The Ford Unintended Acceleration Litigation is a case study on why it is a good idea to use archiving solutions and have expert witnesses conduct data collection. The Plaintiffs argued that Ford[…]
Read moreDiscovery deadlines matter. Wells Fargo learned that the hard way with producing a relevant email 8 months after the close of discovery. Given the nature of the relevancy to the lawsuit, limited additional discovery was reopened. Here is the short overview of the case: Plaintiff’s asked Wells Fargo if the[…]
Read moreA Pro Se Plaintiff in a prison inmate case requested the Court order the Defendants not to destroy any relevant video surveillance footage from a specific date. The Court declined, because the Defendant was already subject to the duty to preserve. Ross v. Conner, 2014 U.S. Dist. LEXIS 146887, at *17-18. The[…]
Read moreNo vacation should end with people becoming Plaintiffs. Sadly, that happened on a trip to Hawaii when someone had a slip and fall in a hotel garage after exiting an elevator. Riley v. Marriott Int’l, Inc., 2014 U.S. Dist. LEXIS 135728 (W.D.N.Y.Sept. 25, 2014). The Defendant hotel maintained both video[…]
Read moreCan a Plaintiff win adverse inference instructions for the destruction of a phone recording destroyed after a one-year retention policy and whose relevance (or existence) was not known by the Defendants for two years after the event happened? Short answer is no. The test for establishing adverse inference instructions for[…]
Read moreA Defendant sought reconsideration of a Court order allowing discovery on their document retention policies and litigation hold strategy on the grounds 1) the order was premature and 2) it was irrelevant and not discoverable. Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist. LEXIS 45251, 11-14[…]
Read moreIn a case where the Court called the Defendants’ disclosures troubling, the Plaintiffs sought sanctions for the failure to back-up hard drives or issue a litigation hold. There was one big problem with the Plaintiffs’ argument: they did not prove that the Defendant had a duty to preserve the email when[…]
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