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When Do Counsels’ Actions Create Spoliation Sanctions?
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
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How Will the Texas Supreme Court’s Spoliation Decision Affect Plaintiffs?
Spoliation sanctions that arise from a failure to preserve evidence are issues of central importance for plaintiff trial attorneys. Recently, the Texas Supreme Court submitted a controversial ruling regarding the negligent destruction of evidence in Brookshire Brothers, LTD., v. Jerry Aldridge No. 10-0846 (Tex. July 3, 2014). Did the Recording
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QK Healthcare And The Examination Of Electronic Evidence Spoliation
In our last blog, we discussed the recent interim opinion in QK Healthcare, Inc. v. Forest Laboratories, Index No. 117407/09 (May 13, 2013). The court noted that electronic data in civil litigation necessitates a new standard that is different from the traditional rules about spoliation of evidence. In finding that
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Judge Scheindlin Reversed Magistrate’s Ruling on Spoliation and Prejudice
About a month ago, our blog discussed the case of Sekisui v. Hart, where a magistrate judge decided an electronic evidence spoliation issue. The magistrate issued a memorandum and order finding that while Sekisui acted “grossly negligent” in deleting emails and ESI after the duty to preserve evidence arose, the
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Despite “Wiping Software,” Metadata and Other Forensic Artifacts May Remain
In the cases discussed in our prior blogs this week, “wiping software” had been used by parties in an attempt to delete what is likely adverse information on personal and work computers. As expert computer forensics continually improves, it has become more likely that deleted files and metadata can, in
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Class Action Attorney Requests $24 Million in Fees but Deleted Electronic Data…What is a Court to Do?
In an order handed down August 7, 2013, a California Court of Appeals considered a class action attorney fee request of $24 million. The case is Ellis v. Toshiba, Nos. B220286, B227078 (Cal. Ct. App. 2013), and it has a very long history. The basic issue on appeal is whether
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Computer Crashes Raise Questions of eDiscovery and Electronic Data Spoliation
Prior to the onset of electronic data saved in native file format, paper documentation in large banker boxes ruled the discovery process for physical evidence. This has completely changed in the last 10 to 15 years, as electronic files in native format are now commonly requested and produced in civil
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Does Production of Hard Copies Negate the Need for Native Files?
What happens when you have lost electronic files and a destroyed computer, but you contend your document production was completed before the computer was discarded? To see how that argument went over in a New York appellate court, check out Harry Weiss, Inc. v. Mendez Moskowitz et al., 2013 NY
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When Must Video Surveillance Be Preserved to Avoid eDiscovery Spoliation?
In an unpublished decision, the Eleventh Circuit decided an appeal by a plaintiff in McLeod v. Wal-Mart, No. 12-13919, slip op. (11th Cir. April 3, 2013). Plaintiff had been charged with theft, but the criminal case was dismissed and plaintiff sued Wal-Mart in a civil case. The court considered the
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Remanded Rambus eDiscovery Case Finds Bad Faith Spoliation
A ruling in the remanded case of Hynix Semiconductor Inc. v. Ranbus, Inc. Case No. C-00-20905 (NDCA Sept. 21, 2012) came down last week after it was sent back to the district court by the Federal Circuit, which found the lower court “applied too narrow a standard of foreseeability” regarding