E-Discovery

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The US District Court for the Western District of North Carolina recently held that even text messages are subject to the duty to preserve electronically stored information (ESI). In Shaffer v. Gaither, the plaintiff asserted claims against her former boss – a US District Attorney – for constructive dismissal based on sexual harassment and…

Continuing a trend among other courts, a recent ruling from U.S.D.C., Middle District of Louisiana, recognized the discoverability of plaintiff’s social media postings.  Baxter v. Anderson, 2016 U.S. Dist. LEXIS 110687 (M.D. La. Aug. 18, 2016).  In Baxter, Magistrate Judge Bourgeois addressed the discoverability of social media in a recent discovery ruling on …

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect in an effort to rein in the scope of federal discovery. Several changes were made to Federal Rule 26 with the goal of reducing the substantial expense and unfairness of overbroad discovery.

Former Rule 26(b)(1) provided that:

Parties may obtain discovery…

Is a defendant entitled to rummage through the desk drawers and closets in a plaintiff’s home as part of discovery in a civil case? Most would agree this is beyond the scope of standard discovery.

A United States District Court Judge used this logic to limit the discovery of plaintiff’s social media accounts when the…

Rule 37(e) of the Federal Rules of Civil Procedure, also known as the “Safe Harbor Rule” of electronic discovery, governs the consequences of a party’s failure to preserve discoverable Electronically Stored Information (ESI). Currently, Rule 37(e) provides:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to…

The United States District Court, Northern District of California, offered some additional guidance regarding what a party must do, and by when, in terms of its preservation obligation. Commenting that Judge Scheindlin “woke up the legal world from its electronic discovery slumber in the Zubulake series,” and that most parties have gotten the basic message…

On December 12, 2012, the U.S. Department of Health Human Services (HHS) launched a new website focused on the use of mobile devices in relation to health information privacy and security.  The website is entitled Mobile Devices: Know the RISKS. Take the STEPS. PROTECT and SECURE Health Information.  The website provides educational materials, such…

In Apple Inc. v. Samsung, et al., the United States District Court for the Northern District of California reiterated the importance of preserving electronically stored information.  The court held that Samsung’s failure to disable its auto-delete function for employee e-mails demonstrated a conscious disregard for its obligation to preserve evidence.  The court sanctioned Samsung…

The March 22, 2012 Report and Recommendation from a federal magistrate judge in the case of Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 2012 WL 1067664 (W.D.N.Y.) is a good reminder to everyone about taking evidence preservation obligations seriously.  In the case, the magistrate judge recommended that the plaintiff’s motion for sanctions on…

Several cases over the last few years have dealt with whether litigation hold letters are discoverable. As a review, a litigation hold is a written communication (email, memo, letter) usually from a party’s lawyer or legal department to the party’s employees explaining the existence of a claim or lawsuit and requesting that certain information be…