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 attorney Lori J. Sklar is
electronic data Archives - Page 2 of 4 - ILS
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- July 24, 2013
Negligent Spoliation Without a Showing of Prejudice: Sanctions or No?
For a recent case that offers a twist on necessary elements for spoliation sanctions, see the memorandum decision dated June 10, 2013 in Sekisui America Corp. v. Hart, 2013 WL 2951924 (S.D.N.Y.). One of the disputes at issue is whether sanctions were warranted against the plaintiff company for deleting a defendant’s email folder. The fact
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- July 19, 2013
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 spoliation did occur in this
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- July 17, 2013
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 litigation. This presents a slew
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- July 15, 2013
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 Slip Op 038927 (May 30,
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- July 8, 2013
Asbestos MDL: Plaintiffs Will be Prejudiced Without Scientific Data
Would it be fair for a defendant to use scientific studies as a sword in litigation, but then wield a shield of privilege to prevent disclosure of the underlying scientific and electronic data used in those studies? In a recent order in the case, In re New York City Asbestos Litigation, 2013 NY Slip Op
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- June 10, 2013
Electronic Discovery Issue: When Does Automatic Deletion of Data Become Spoliation?
Most businesses that have extensive electronic data and email communications have systems in place that automatically delete old data after set periods of time. However, when litigation is reasonably foreseeable, a duty to preserve evidence is imposed on all parties. When does automatic electronic data deletion cross the line into spoliation of evidence? In a
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- June 6, 2013
$250 Million Spoliation Sanction Ordered Against Rambus to Conclude Patent Case
Over 7 years of litigation was recently concluded with a district court entering a $250 million sanction in SK Hynix v. Rambus, 2013 WL 1915865 (N.D. Cal. May 8, 2013). What is interesting in this case is that the sanction was entered against Rambus, the prevailing party, in the underlying patent law case. The extremely
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- May 22, 2013
Are Third-Parties Exempt from Standard Electronic Discovery Obligations?
In our last blog, we discussed the Order dated May 9, 2013 in Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013). Google was subpoenaed as a third-party in the action, and after responding to the subpoena, Google rejected Apple’s request to disclose the search terms used to produce the electronic data. Google’s main argument was that
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- May 20, 2013
Court Compels Google to Disclose How it Created the Universe
This title is a paraphrase of the basic question at the heart of an Order dated May 9, 2013 in Apple v. Samsung, Case No. 12-CV-0630-LHK(PSG)(N.D.Ca. 2013), where Apple had a dispute with third-party Google. Apple subpoenaed Google to provide electronic discovery under Fed. R. Civ. P. 45. (Non-parties may be subpoenaed to produce documents
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