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Does the Duty to Preserve Include the Duty to Recover Electronic Data?
The case law is clear: once litigation is reasonably foreseeable, both parties in civil litigation have a duty to preserve electronic data that would be relevant to a claim or defense. If a party destroys evidence, even unintentionally, this could be construed as spoliation. The sanctions available after spoliation include
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Clawbacks: A Weapon Against Defense Undue Burden Argument?
A common excuse for defendants responding to plaintiff electronic discovery requests is that it is unduly burdensome to have to review massive amounts of documents for privilege. Many defendants will claim that having to review the documents to remove or redact privileged electronic data is just too expensive. While these
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Default Judgment Entered Against Defendant in 10th Circuit Discovery Abuse Case
In Klein-Becker USA, LLC v. Englert, No. 12-4076, (10th Cir. 2013), plaintiff brought an action against an individual defendant who fraudulently acquired the plaintiff’s product and was selling it online. The defendant resisted plaintiff discovery requests from the start. Early in the case, in ruling on plaintiff’s motion for sanctions, the magistrate judge
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Plaintiffs Take Note: Deletion of Facebook May Be eDiscovery Spoliation
Our last blog reviewed the facts and timeline in the ongoing New Jersey case and order from Gatto v. United Air Lines, Inc., Civil Action No.: 10-cv-1090-ES-SCM (N.D.N.J. March 25, 2013). The parties disagreed on whether a previous order requiring plaintiff to provide his Facebook account meant the defendant had
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Deleted Facebook Account: Misunderstanding or eDiscovery Spoliation?
In the case Gatto v. United Air Lines, Inc., Civil Action No.: 10-cv-1090-ES-SCM (N.D.N.J. March 25, 2013), the court entered an order on the defendant’s Motion for Sanctions in a personal injury case. The defendants requested information from Gatto’s social media accounts as part of the plaintiff ESI production, served
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Different Types of Sanctions Considered for EEOC eDiscovery Disputes
In our last blog, we reviewed the plaintiff eDiscovery issues in EEOC v. The Original Honeybaked Ham Company of Georgia, No. 11-cv-02560-MSK-MEH (D.Co. Feb. 27, 2013). While the court found the EEOC attorneys’ conduct caused delays in the discovery process, it grappled with what sanctions might be appropriate. The court
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Are Sanctions Proper in EEOC Sexual Harassment Case?
EEOC v. The Original Honeybaked Ham Company of Georgia, No. 11-cv-02560-MSK-MEH (D.Co. Feb. 27, 2013) is an ongoing case that we blogged about last year. In the prior interlocutory order, the court granted broad access to class members’ social media accounts (subject to a protective order and an in camera review). After
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SCOTUS Delivers Setbacks to Class Actions
Our blog not only follows the latest in plaintiff eDiscovery news and case law, but also cases that affect trial attorneys who fight for consumers in class action lawsuits. Last week, the Supreme Court issued set backs to would-be class members in both a 5-4 decision in Comcast Corp. v.
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Defendant Denied eDiscovery Cost Shifting in Private Contract Case
In Juster Acquisition Co, LLC v. North Hudson Sewage Authority, No. 12-3427 JLL (N.D.N.J. 2013), plaintiff electronic discovery requests were served on the defendant, which included 49 requests for documents and 100 search terms. After the defendant claimed to have produced approximately 8000 pages worth of electronic data, plaintiff served
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Apple’s eDiscovery Failure in Plaintiff Class Action Over Apps
In an ongoing litigation over users’ privacy for iPhone and iPad apps, entitled In Re iPhone Application Litigation in the Northern District of California, plaintiffs allege that the private, personal information has been sold to third parties without the plaintiffs’ knowledge or consent. Plaintiff eDiscovery requests were served on Apple in preparation for