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Archives: Electronic Discovery

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Think twice before hitting “record”

It is simple enough: press record and you can easily share your internal video conference call, re-watch it later, or forget it and move on. You move on until you receive a discovery request or a subpoena for information if the company is sued. Now, your internal video call is discoverable and may be seen … Continue Reading

Do you know what your employees are posting while they’re at work?

Our colleagues at Employer Law Report posted about an interesting case in which FedEx was sued because one of its employees used the company’s internet connection to post allegedly defamatory comments. The Court of Appeals of Indiana affirmed the trial court’s decision dismissing the plaintiffs’ claims based on Section 230 of the Communications Decency Act. … Continue Reading

Key e-discovery cases in February

In February, there again was a number of interesting spoliation decisions, including an order permitting the defendants to assert a counterclaim for spoliation based on the plaintiffs’ alleged failure to preserve relevant information, another sanctions order in multi-district products liability litigation in which the court looked closely at the breadth of litigation hold notices issued … Continue Reading

Key e-discovery cases in January

The new year is off to a fast start with a number of decisions addressing key e-discovery issues, including a decision from the Seventh Circuit regarding the Dec. 9, 2013 sanctions order issued by the district court in the In Re Pradaxa multi-district products liability litigation and a spoliation finding against the defendants in the … Continue Reading

Top 10 e-discovery developments and trends in 2013: Part 1

Here is my third annual list of the top 10 e-discovery developments and trends from the past year. 1. The growth of Bring Your Own Device (BYOD) policies and work-related text messaging is creating litigation hold challenges. A Cisco survey found that 89% of companies are currently enabling employees to use their own electronic devices … Continue Reading

Key e-discovery cases in December

The end of the year brought another decision that impacts Bring Your Own Device (BYOD) policies as well as another Court of Appeals decision addressing the recoverability of e-discovery costs under 28 U.S.C. § 1920(4), which permits a court to award “the costs of making copies of any materials where the copies are necessarily obtained … Continue Reading

Key e-discovery cases in November

Last month, Magistrate Judge David J. Waxse decided an issue that we likely will see more of in the age of big data. He rejected a defendant’s undue burden argument even though even though the “data warehouses” at issue contained over 100 terabytes of data and the production would take several months to develop a … Continue Reading

When is “discovery about discovery” permitted?

A court in the Southern District of Ohio recently ordered the defendants in a wrongful death case to answer interrogatories asking them to explain “what procedures or methods were used to search for responsive electronically stored information, or ESI,” and “what efforts they made to comply with plaintiffs’ previous discovery requests.” Ruiz-Bueno v. Scott, No. … Continue Reading

Key e-discovery cases in October

Here are my thoughts on key e-discovery cases decided in October, including a decision in which the court was highly critical of a party’s “single-minded focus on discovery of ESI,” a couple of cases in which the court applied principles of proportionality to decide whether the producing party should run additional search terms requested by … Continue Reading

Key e-discovery cases in September

Here are my thoughts on key e-discovery cases decided in September, including a decision showing how a company can defensibly delete data that it no longer needs, the recent case “trend” of courts requiring the disclosure of the sources and search terms used to find discoverable ESI, and a couple of cases addressing the issue … Continue Reading

Defensible deletion: No spoliation where defendant destroyed emails and documents pursuant to its records retention policies

When I present on e-discovery, I often use EDRM’s Electronic Discovery Reference Model to explain how decisions made about the creation, storage and deletion of electronically stored information (ESI) can affect how e-discovery is conducted in a lawsuit. The EDRM model illustrates how a company’s records and information management policies can impact the volume of … Continue Reading

Key e-discovery cases in August

In addition to the posting of the proposed discovery amendments to the Federal Rules of Civil Procedure for public comment, August was packed with a number of interesting e-discovery decisions. Here are my thoughts on key e-discovery cases decided last month, including another spoliation blockbuster from Judge Shira Scheindlin and rulings on e-discovery costs, search … Continue Reading

Subpoenas seeking identifying information and login data associated with email addresses did not violate First Amendment or privacy rights

A federal court in California has held that subpoenas served on Google and Yahoo! seeking the subscriber and usage information associated with 68 email addresses did not infringe on the subscribers’ First Amendment rights or their right to privacy. Chevron Corp v. Donziger, No. 12-mc-80237 (N.D. Cal. Aug. 22, 2013). The subpoenas also did not … Continue Reading

Sanctions for spoliation of evidence

This article was published originally at InsideCounsel.com. The article is the final installment of a six-part series focusing on evidence spoliation. Read more here, here and here. Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and … Continue Reading

Court holds that employer did not have “possession, custody or control” of text messages sent or received on its employees’ personal cell phones

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that: … Continue Reading

Court denies employer’s access to social media posts in FLSA collective action and sends warning: If you want access to social media, come with both barrels loaded … leave the water gun at home

A federal court has denied a defendant-employer’s request that plaintiffs sift through and turn over all their social media posts made during their work hours in an FLSA collective action in which the plaintiffs claim their employer failed to give them meal breaks. How did that happen? I thought you’d never ask. By way of … Continue Reading

Out of sight, out of mind

This article was published originally at InsideCounsel.com. The article is the fifth in a six-part series focusing on evidence spoliation. Read more here and here. Technology Law Source will notify readers when InsideCounsel.com publishes the final article in this series. We previously addressed the scope of the duty to preserve. Once you determine when the … Continue Reading

Be careful what you say

This article was published originally at InsideCounsel.com. The article is the fourth in a six-part series focusing on evidence spoliation. Read more about previous posts. Technology Law Source will notify readers as InsideCounsel.com publishes additional articles in this series. In its simplest terms, a legal hold (also known as a litigation hold, preservation order, suspension … Continue Reading

Court uses “Traditional Relevance Analysis” to order production of plaintiff-employee’s social media postings on emotional distress and alternative potential stressors

In an ADA employment discrimination case, a federal court recently denied a defendant’s request to compel the plaintiff to provide authorizations for all of her social media accounts, but still ordered the production of any social media postings relevant to the plaintiff’s claimed emotional distress damages. See Giacchetto-v-Patchogue-MedfordUnion, No. CV 11-6323 (E.D.N.Y. May 6, 2013). … Continue Reading

When does a company have a duty to preserve evidence?

This article was published originally at InsideCounsel.com. The article is the first in a six-part series focusing on evidence spoliation. Read part 2: Events courts consider when deciding if duty to preserve evidence has been triggered; and part 3: Preservation obligations after a duty to preserve has been triggered. Technology Law Source will notify readers … Continue Reading

Court relies on proportionality to deny inspection of defendant’s computers, cell phones and email accounts

Earlier this year, we wrote about a decision in which a federal district court rejected a proportionality argument and ordered the production of a defendant’s entire database because the information in the database was highly relevant to the plaintiff’s trademark infringement claim. Another federal district court recently came out differently in a trade secret misappropriation … Continue Reading
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