Category: Litigation Holds

  • Are Emails Containing Search Term Keywords Automatically Discoverable?

    20 Oct 2014

    Lewis v. Bay Industries, et al., Case No. 12-C-1204, (E.D.Wis. Sept. 30, 2014) is a case where the plaintiff alleged unlawful retaliation under state and federal law. Pending before the court is the employer’s (“Bay”) Motion for Summary Judgment and Lewis’ Motion for Sanctions under Rule 37. Lewis contended that

  • Ethical Duties Require Intricate Knowledge of Electronic Discovery

    2 Oct 2014

    How Can Plaintiff Trial Attorneys Protect Themselves and Their Clients? Our plaintiff eDiscovery blog recently wrote a series of posts about the California Bar’s Formal Interim Opinion 11-0004 regarding ethical duties an attorney must be aware of while dealing with electronically stored information (ESI). The opinion warned trial attorneys that

  • Could Deleted Instant Messages (IMs) be a Basis for Spoliation?

    22 Sep 2014

    Any form of electronic data that is relevant to a claim or defense is discoverable evidence; therefore, instant messages (also called IMs) can certainly be the basis of a spoliation allegation if they are deleted after a duty to preserve evidence is in place. Broadspring, Inc. v. Congoo, LLC, No.

  • Does Failure to Issue a Litigation Hold Mean a Breach of the Duty to Not Suppress Evidence?

    12 Sep 2014

    This week our blog has been reviewing the California Bar Association’s Formal Interim Opinion No. 11-0004. The last two posts reviewed the hypothetical scenario of an attorney who was not well-versed in ESI litigation and failed to consult with an electronic evidence expert. As a result, the attorney breached his

  • California Bar Issues Formal Opinion RE: ESI and Duty of Confidentiality

    10 Sep 2014

    In our last post, we reviewed the California Bar Association’s Formal Interim Opinion No. 11-0004, concerning the ethical duties surrounding the handling of electronically stored information (ESI). We reviewed the hypothetical scenario and went over why the attorney breached the duty of competence when he made several mistakes regarding litigation

  • Does a Plaintiff Attorney Have an Ethical Duty to Understand ESI In California?

    8 Sep 2014

    The California Bar Association recently released Formal Interim Opinion No. 11-0004, regarding an attorney’s ethical duties in the handling of discovery of electronically stored information (ESI). The Opinion offered a hypothetical example of an attorney who was unfamiliar with ESI. When it became apparent that electronic discovery would be sought

  • When Do Counsels’ Actions Create Spoliation Sanctions?

    4 Aug 2014

    When resolving spoliation issues between litigants, courts will fashion sanctions that properly address the severity of spoliation, place the parties on equal footing, and serve as a deterrent for future cases. This is a task that is not taken lightly, and one which the court sought to remedy in Brown

  • How Do “Bring Your Own Device” (“BYOD”) Policies Affect Discovery?

    12 Jul 2014

    “Bring your own device” (“BYOD”) is a growing practice of businesses allowing employees to use their own computers, smartphones, tablets, or other devices for work purposes. BYOD is making significant inroads into the business world. Around 75 percent of employees in high growth markets, such as Brazil and Russia, are

  • What Type of ESI Spoliation Led to Dismissal of Plaintiff’s Claim?

    23 May 2014

    Many of the spoliation cases we blog about discuss defense-side electronically stored evidence, but plaintiffs can be sanctioned for spoliation as well. For a case where plaintiff’s case was dismissed entirely due to the spoliation of evidence, see Cornelius v. Bae Systems Information Solutions, Inc., Case No. 1:13-cv-00825 AJT/TCB (E.D.Virginia

  • Are Back-up Servers and Back-up Tapes the Same Thing in eDiscovery?

    23 Apr 2014

    In the last post, we discussed the Defendant’s meager ESI production in Knickerbocker v. Corinthian Colleges, Case NO. C12-1142JLR (W.D. Wash. April 7, 2014). Pending is Plaintiff’s Motion for Sanctions for failing to produce Plaintiffs’ email communications within their control, among other deficiencies. (Read the prior post for a fuller