E-Discovery Sanctions: 5 Practice Tips for Protecting Your Clients & Your Reputation
For more information, please contact Katie King at kaking@kilpatricktownsend.com.
Subscribe to the E-Discovery Newsletter
Related Posts
We Hold These Rules to Be Self-Evident: Document Review, Relevance, and the Federal Rules of Civil Procedure
Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023). The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34.
When The Timing of Your Spoliation Motion Can Be As Important As Its Substance
A motion for an adverse inference was denied in Pratt v. Robbins, et al. where Defendants failed to preserve or produce a video that might have contained pivotal evidence going to the heart Plaintiff’s civil rights claim for excessive force. Plaintiff argued that Defendants spoliated evidence by failing to produce the video footage that may have recorded the use of force at issue. A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally held to a clear and convincing standard. Plaintiff’s decision to suddenly cry foul on the eve of trial did not go over well with the Court.
Newest Posts
-
We Hold These Rules to Be Self-Evident: Document Review, Relevance, and the Federal Rules of Civil Procedure
Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023). The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34.
-
When The Timing of Your Spoliation Motion Can Be As Important As Its Substance
A motion for an adverse inference was denied in Pratt v. Robbins, et al. where Defendants failed to preserve or produce a video that might have contained pivotal evidence going to the heart Plaintiff’s civil rights claim for excessive force. Plaintiff argued that Defendants spoliated evidence by failing to produce the video footage that may have recorded the use of force at issue. A party seeking spoliation sanctions bears the burden of proving all of the elements of Rule 37(e), and under Fourth Circuit precedent is generally held to a clear and convincing standard. Plaintiff’s decision to suddenly cry foul on the eve of trial did not go over well with the Court.
-
PLAY IT AGAIN, SAM . . . BUT WAIT – WHAT IS HE PLAYING, AND WHO IS SAM?: Website Session Replay Software and Wiretapping
The trend of class action cases alleging wiretap statute violations against website operators for the use of session replay software to collect information of website users continues to be a concern for companies in 2024. While many of these cases have turned on whether website operators disclosed and obtained consent from website users prior to deploying any session replay software, a recent decision in a pending class action brought under the Pennsylvania Wiretap Act indicates that consent alone may not be the end of the story in these cases.