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After “Miscommunication and Confusion,” Court Orders Third Party Vendor to Respond to Plaintiff Discovery Requests
It is essential when drafting plaintiff electronic discovery requests to be clear on what format is being sought regarding electronic data in a defense production. In the federal courts, Fed. R. Civ. P. 34(b)(2)(E)(i) holds electronic discovery production to be proper when parties “produce documents as they are kept in
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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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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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Court Orders “Dead” Computers be Brought Back to Life by Forensics Experts
Expert computer forensics has received a lot of attention in civil litigation lately, as parties are realizing that deleting files may not be as permanent as they otherwise thought. In an interim memorandum and order dated August 5, 2013 in the case Net-Com Services, Inc. v. Eupen Cable USA, No.
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Ohio Appeals Court: Dismissal of Defendant’s Claims Proper for “Lost” Computer, Hard Drive and ESI
In our last blog, we reviewed the facts and timeline in the case Altercare, Inc. v. Clark, C.A. No. 12CA010211 (Ohio Ct. App. June 28, 2013). In the case, Clark was terminated from her position, and both she and her former employer, Altercare, had claims and counter-claims. After writing a
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Crashed Computer, Disappeared ESI, Lost Hard Drive: What Sanction is Warranted?
Dismissal of a claim or counter-claim is the harshest sanction a court can impose. (Although monetary fines can certainly be painful!) Would dismissal of a claim be warranted in the following situation? Let’s examine the facts. In Altercare, Inc. v. Clark, C.A. No. 12CA010211 (Ohio Ct. App. June 28, 2013),
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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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Can Plaintiffs Keep Facebook Profiles “Private” to Shield from eDiscovery?
“Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster.” Such was the issue facing a district court in Higgins v. Koch Development Corporation, No. 3:11-cv-81-RLY-WGH(S.D.In. July 5,
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Colorado Supreme Court, En Banc, Calls for “Active Judicial Management” of Discovery Productions
The Colorado Supreme Court recently handed down a ruling regarding disputes over discovery productions and electronic data in civil litigation. Their solution? More court intervention and “active judicial management” of pre-trial discovery matters. The case is DCP Midstream, LP v. Andarko Petroleum Corporation, Case No. 12SA307 (Colo. 2013)(en banc). Plaintiff