Spoliation

  • Forensic Exam of a Mobile Device
    Legal Updates

    When a Forensic Exam of a Mobile Device May Be Warranted

    While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages, and collections from mobile devices are oftentimes overlooked. A narrowly tailored motion to compel forensic exam can be a valuable discovery tool to analyze the data on a party’s mobile phone. This blog analyzes the factors that led a court in the Northern District of Illinois to order the forensic imaging and collection of a party's mobile phone.

  • Truth
    Legal Updates

    And The Truth, or Lack Thereof, Shall Set You Free - PART TWO

    In Part Two of this blog series, I discuss lessons learned and provide best practices for complying with discovery obligations. In Part One of this blog series, we analyzed Burris v. JP Morgan Chase & Co., et al., a case in which the Court dismissed Plaintiff's complaint with prejudice because of Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” which posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available." As litigants and legal practitioners, we can learn from the Court's decision in Burris and ensure we don't make the same mistakes.

  • Truth
    Legal Updates

    And The Truth, or Lack Thereof, Shall Set You Free - PART ONE

    In Part One of this blog series, I discuss a case that makes clear the importance of complying with discovery obligations. The Court concluded that Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available” and ordered Plaintiff’s complaint dismissed with prejudice. Indeed, although the old adage dictates that to the victor go the spoils, there are no spoils and no victory for one who engages in spoliation. 

  • Justice
    Legal Updates

    Court Orders Spoliation Sanctions Requiring Defendants and Former Defense Counsel To Pay Attorneys’ Fees and Costs

    In DR Distributors LLC v. 21 Century Smoking, Inc, v. CB Distributors, Inc. and Carlos Bengos, 2021 WL 185082, No. 12 CV 50324 (1/19/2021), Judge Johnston of the Northern District of Illinois, granted Plaintiff’s motion for sanctions against Defendants and their former counsel, requiring them to, among other things, pay what was expected to exceed a million dollars of attorneys’ fees and costs to Plaintiff. The Court imposed the sanctions based on its conclusion that Defendants and their former counsel: did not take reasonable steps to preserve ESI (electronically stored information); did not conduct a reasonable investigation of their ESI; did not timely disclose ESI under 26(g); and spoliated thousands of emails and chat messages. This ruling shows that we, as legal practitioners, need to be extremely congizant of our discovery obligations.

  • When Good Business Sense Doesn’t Make Good Legal Sense
    Legal Updates

    When Good Business Sense Doesn’t Make Good Legal Sense

    In my role as a Senior E-Discovery Attorney, I often provide guidance to organizations in how to develop and implement policies governing data retention and disposition. When developing those policies, it is critical to consider both the business and legal implications of preserving or deleting data and, ideally, find a balance between the two even when the concerns and priorities may not be the same. A recent case highlights what often proves to be a fundamental tension between the perspective of business stakeholders and legal stakeholders with respect to the preservation of ESI for pending or reasonably anticipated litigation in large corporations.

  • Purple Rain
    Legal Updates

    It’s Purple Raining Sanctions: Litigation Regarding Prince’s Estate Provides Framework for Determining When Sanctions Apply Under FRCP Rule 37(e)

    You may have read my colleague Starling Underwood’s post on two recent Second Circuit decisions discussing sanctions for spoliation. If you have not, I encourage you to read it here.  In this post, and continuing our music-themed sanction discussions, I narrow the focus to Federal Rule of Civil Procedure Rule 37(e), which is used to determine whether and what sanctions are appropriate when ESI spoliation occurs. A recent decision from the Minnesota District Court involving the estate of the artist Prince Rodgers Nelson (“Prince”), Paisley Park Enterprises, Inc. v. Boxill, provides a detailed review of the sanctions analysis under Rule 37(e), while dealing with a category of very common ESI data often at issue in litigation today –  mobile phone text messages.