Electronic Discovery Law | Legal issues, news and best practices relating to the discovery of electronically stored information.
Absent Plaintiff’s Control of Emails in Employees’ Personal Accounts, Court Denies Motion to Compel
Court Applies Amended Rule 26, Concludes Burdens on Parties Resisting Discovery Have Not Fundamentally Changed
In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference
Electronic Discovery Law Blog Named to ABA Journal’s Blawg 100 (Again!)
Today is the Day! Amendments to Federal Rules of Civil Procedure Effective Dec. 1, 2015
Federal Rule Changes Affect e-Discovery – Are You Ready This Time?
Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”
“The trial court erred in concluding that Washington has recognized a general duty t it has not.”
Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law
U.S.-EU Safe Harbor Invalidated. What Next?
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Matthew Enter., Inc. v. Chrysler Grp., LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015)
In this case, the court declined to compel production from Plaintiff’s employees’ personal email accounts because Plaintiff did not have control of the emails for purposes of discovery.
As to the contents of Plaintiff’s “customer communications database” maintained by a third party vendor, however, the court found that Plaintiff did have control of the ESI, as evidenced by the prior production of certain data at Plaintiff’s request.
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Carr v. State Farm Mut. Auto. Ins. Co., No.3:15-cv-1026-M, 2015 WL 8010920 (N.D. Tex. Dec. 7, 2015)
In this case, the court addressed Defendant’s Motion to Compel discovery responses and undertook substantial analysis of the effects of newly amended Federal Rule of Civil Procedure 26 on the burdens of parties’ resisting discovery, concluding they had not fundamentally changed.
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United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)
In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation.
Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted.
Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.
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Learn Strategies for Litigating in the New Framework
Join Us For a Complimentary 3 Hour CLE
Important updates and revisions to the Federal Rules of Civil Procedure take effect on December 1, 2015, absent (unlikely) action by Congress. These changes will undoubtedly have a substantial effect on litigation (and pre-litigation) strategies and practice, particularly with regard to discovery. Issues addressed by the amendments include — among others — the scope of discovery, responses and objections to requests for production, and preservation (or loss) of electronically stored information.
Please join us for a lively and informative strategic discussion of the amendments, the ways they will affect your future practice and cases, and the steps you can take to address and embrace the new paradigms shaped by these changes. In-house counsel will join members of the K&L Gates global e-Discovery Analysis & Technology practice group to address the significance of these rule changes, their ethical implications for legal practitioners, the opportunities for advocacy afforded by the rules’ increased attention to proportionality, and the practical effects of these rule changes on record preservation practices.
Live programs will take place on December 1st in Seattle, WA and December 3rd in Pittsburgh, PA.
These programs will also be available via webinar.
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West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)
In this case, the court granted Defendants’ motion to exclude “Plaintiff’s use of any argument or evidence of alleged spoliation” where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s “old computer” and to hire a third party to search for and recover relevant emails and documents from the same.
Thus, the court found that Plaintiff failed to establish prejudice.
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Cook v. Tarbert Logging, Inc., —P.3d—, 2015 WL 5771329 (Wash. Ct. App. Oct. 1, 2015)
In this case, Plaintiffs failed to preserve the pickup truck involved in the at-issue accident, including the airbag control monitor (ACM), despite first allowing their own expert to inspect it.
To address the loss, Plaintiffs’ expert was precluded from testifying as to his opinion regarding the drivers’ speed and ultimately was not called as a witness.
Defendants were allowed to present evidence regarding Plaintiffs’ failure to preserve and to inform the jury of the expert’s inspection.
This created the false inference that the expert’s conclusions were unfavorable to the plaintiffs, which the plaintiffs were not permitted to rebut (the expert had in fact concluded that Plaintiff had been travelling at a “slower and safer speed” than the defendant at the time of the accident).
On appeal, the court determined that the trial court “erred in concluding that Washington has recognized a general duty
it has not.”
The court also concluded that the trial court abused its discretion by allowing Defendants to tell the jury about the expert and his inspection without also allowing rebuttal from the plaintiffs.
Accordingly, the court reversed the case in part and remanded for a new trial.HowStuffWorks
Lifestyle Changes to Prevent Dementia
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Getting exercise and spending time with friends can help prevent dementia. See more .
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&Get enough sleep, eat right and go out to play!&This advice might bring back memories of childhood or of parenting, but it's also a good prescription for a lifetime of
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Lifestyle Changes to Prevent Dementia
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