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Court Considers Objection Waivers for Inadequate Response to Plaintiff ESI Requests
In Westdale Recap Properties, Ltd. et al. v. NP/I&G Wakefield Commons, LLC et al., No. 5:11-CV-659-D (E.D.N.C. September 26, 2013), plaintiff was a shopping mall tenant who sued the defendant property manager for fraud and unfair and deceptive practices, among other claims. After exchanging agreed-upon ESI protocols, the defendants moved
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Is an eDiscovery Order Immediately Appealable as a Final Judgment?
In the state court case of Radzick, et al. v. Connecticut Children’s Medical Center, et al., No. AC 34952(Conn. App. Ct. September 17, 2013), the plaintiff was the estate of a young boy who died allegedly due to medical malpractice by the defendants. Plaintiff discovery requests sought email and electronic
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Kansas District Court Notes 10th Circuit Requires Showing of Prejudice for Electronic Evidence Spoliation
In our last blog, we discussed Judge Shira Scheindlin’s order regarding electronic evidence spoliation in Sekisui v. Hart, 12 Civ. 3479 (S.D.N.Y. August 15, 2013). In that case, the court held that prejudice to an innocent party is presumed when the destruction of ESI was willful. But is that the
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Does the Destruction of Metadata Necessarily Prejudice Plaintiffs?
Our last blog reviewed the legal standard for spoliation of electronically stored evidence in a district court case within the 10th Circuit. In Herrmann v. Rain Link, Inc., Case No. 11-1123-RDR (D. Kan. July 19, 2013), the court ultimately held that although the defendants failed to preserve ESI, this was
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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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District Court Denies “Metadata Extraction” As a Taxable Cost Under Fed. Rule 54(d)
An ongoing issue courts across the country are grappling with is when a prevailing party is seeking costs under Fed. R. Civ. P. 54(d)(1). The rule allows for costs, over and beyond attorneys’ fees, to be recovered if the cost falls under one of the allowed categories. In a recent
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Federal Rule 34 Regarding ESI: What is the Correct Means of Document Production?
In an interim order by a magistrate judge dated June 28, 2013 in Kwasneiwski et al. v. Sanofi-Aventis US LLC, et al., 2:12-cv-00515-GMN-NJK (D. Nev. 2013), the defendants responded to plaintiff discovery requests by producing a large amount of documents and data that was not organized to match the requests.
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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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Plaintiffs Sought Spoliation Sanction for Deleted Audio Recordings: Warranted or Not?
In the case Cottle-Banks v. Cox Communications, 2013 WL 2244333 (S.D.Cal 2013), a court considered an electronic discovery issue of whether spoliation sanctions were warranted against the defendant for the automatic destruction of audio recordings saved as electronic data. At issue in the underlying case, filed on September 13, 2010,