This blog’s alternate title is the eDiscovery Gang that Couldn’t Spoliate Straight, as both vivid lines are lifted straight from the court’s opinion in Victor Stanley Inc. v. Creative Pipe, Inc. et al., No. MJG-06-2662 (D.C.M.D. 2010). The defendant in this case engaged in what may be the most egregious example of flouting court orders
eDiscovery
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- September 10, 2012
Electronic Discovery and Incarceration: An Extreme Sanction for An Extreme Case
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- September 7, 2012
Samsung Chokes on Apple After Email Spoliation
Defendant Samsung had a rough week in court. Apple had sued Samsung for patent infringement, and the defendant was ill-equipped for electronic data discovery. This led to a breach of its duty to preserve evidence and might have contributed to the $1 billion verdict entered against it by a jury in Apple v. Samsung Electronics
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- September 5, 2012
Electronic Discovery Shines a Bright Light on Defendant Misconduct
Our blog frequently writes about preservation of evidence and how corporate defendants are getting into hot water when their litigation hold policies fall short. As more corporations move to full electronic data over paper documentation, it will become harder to hide, destroy or fail to produce relevant evidence. This is illustrated in “Sanctions for e-Discovery
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- September 3, 2012
Second Circuit Takes Two Steps Back to Enforce Duty to Preserve Evidence
The standardization of eDiscovery protocols and better computer forensics is giving a boost in modern litigation to plaintiffs seeking to uncover the truth. Electronic data is difficult to hide or destroy, as it almost always leaves trace artifacts and trails. This was evident in the Zubulake series of cases where the defendant failed to preserve
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- August 31, 2012
Making Copies: What eDiscovery Services are Taxable Costs?
Is eDiscovery preservation, collecting, culling, searching and production the same as “making copies?” The defendants thought so in Race Tires America, Inc. LLC v. Hoosier Racing Tire Corp. (Race Tires II), No. 11-2316, 2012 WL 887593 (3d Cir. Mar. 16, 2012). The defense had won the underlying case on a motion for summary judgment and
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- August 29, 2012
Pennsylvania Supreme Court Rewrites the Rules for Electronic Discovery
Electronic data discovery is constantly evolving in both the state and federal courts. Federal courts now have accumulated a large amount of eDiscovery case law (much of which is discussed in our blog). Many state court opinions turn to and cite federal jurisprudence and the amendments to the Federal Rules of Civil Procedure regarding electronically
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- August 27, 2012
The Scope of Social Media in Plaintiff ESI Production
Litigants and courts struggle to define the scope of electronic data discovery, as well as the logistics of how to physically produce the electronically stored information. The newest scope and logistical challenges for ESI now lies in social media content. In EEOC v. Simply Storage Management, LLC Case No. 1:09-cv-1223-WTL-DML (2010), the U.S. District Court
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- August 24, 2012
What Should Plaintiffs Do if They Receive Inadvertent Disclosure in ESI?
Our last blog discussed a state business litigation case out of North Carolina where the defendants accidentally sent over an ESI production rife with data protected by attorney-client privilege. The defendants acted recklessly in their ESI production and failed to take even minimal steps to guard against inadvertent disclosure; therefore, the court found their actions
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- August 22, 2012
Defendant’s “Document Dump” Leads to Waiver of Attorney-Client Privilege
Defendants often employ an old, tired tactic to overwhelm plaintiffs’ counsel in response to discovery requests: Bury them in paperwork! However, litigants may want to rethink this strategy, as the use of a “document dump” for electronically stored information (ESI) can lead to inadvertent disclosure of privileged information. In the North Carolina business litigation case
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- August 20, 2012
Avoiding the Crossfire: The Lessons of Zubulake V
“When communication between counsel and client breaks down, conversation becomes “just crossfire,” and there are usually casualties.” Zubulake V, 2004 U.S. Dist. LEXIS 13574 (S.D.N.Y. July 20, 2004). Zubulake V picks up where the last order left off, being that the Court found the defendants had breached their duty to preserve back up tape email
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