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Can Plaintiff Receive Expedited Discovery to Investigate Spoliation?
In the class action case Mirkarimi v. Nevada Property 1 LLC, Case No. 12cv-2160-BTM (DHB) (S.D.Cal. November 18, 2014), the court granted a number of extensions for class certification discovery between March and September of 2014. Defendant repeatedly indicated to Plaintiff and the court that it was diligently retrieving audio recordings
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Email Spoliation Claim Can Move Forward Against Defendant
In Yontz v. Dole Fresh Vegetables, Case No. 3:13-cv-066 (S.D.Ohio, October 10, 2014), Plaintiff alleges retaliation and wrongful termination related to FLMA leave. Plaintiff also claims that Defendant spoliated relevant emails. Defendant moved for summary judgment on the spoliation allegation and on the underlying merits of the case. The court considered
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Is Human Error a Valid Excuse for Missing Emails and Audio Recordings?
In Novick v. AXA Network, No. 07-CV-7767(AKH)(KNF)(S.D.N.Y. October 22, 2014), at issue is Plaintiff’s request for sanctions against Defendant for missing audio recordings and emails. The timeline is helpful to understand this case: Plaintiff alleged wrongful termination that occurred in October 2006 Plaintiff sent an evidence preservation request in October
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Defense Counsel Fined for Failing to Issue Timely Litigation Hold
Alter v. Rocky Point School Dist., No. 13-1100(JS)(AKT)(E.D.N.Y. Sept.30, 2014) is a workplace discrimination action. After discovery began, Plaintiff filed two motions to compel and a motion for sanctions against Defendants for failing to preserve electronic discovery and failing to issue a litigation hold of key players to the action.
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Can Metadata Uncover Altered Photographs for Insurance Disputes?
Metadata, or data about data, can uncover a multitude of information about all types of electronic data, including but not limited to digital photographs. In Knoderer v. State Farm Lloyds, et al., No. 06-13-00027-CV (Ct.App. Tx. 6th Dist. Sept. 19, 2014), a residential insurance dispute, both sides accused the other
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Could Deleted Instant Messages (IMs) be a Basis for Spoliation?
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.
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Does Failure to Issue a Litigation Hold Mean a Breach of the Duty to Not Suppress Evidence?
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
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Are Boilerplate Objections Sanctionable as Spoliation?
We recently posted a blog that asked the question: Do Modern Discovery Practices Border on Sanctionable Abuse? Moving from that question, we now look at the case of Fidelity National Title Insurance Company, et al., v. James C. Castle, et al., Case No. 11-CV-896 YGR (N.D. Cal. August 11, 2014),
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Does “Less Accessible” Information Amount to Spoliation?
We often discuss spoliation in the sense that a party’s actions are overt, willful, and egregious during the process of discovery. However, an equally important question is whether a party that merely creates less accessible information has engaged in spoliation? The court took up this question in Mazzei v. The
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What Conduct Warrants an Adverse Inference Instruction?
An important aspect of litigation for plaintiffs is being able to assess the level of conduct that will require plaintiffs to seek sanctions against a defendant. As such, a reasonable question is what type of conduct would warrant an adverse inference instruction? The court looked to answer this question in