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By Jason Cashio

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

By Sam O. Lumpkin

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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

eDiscovery1

By Jason R. Cashio

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

By Jason R. Cashio

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. 

By Esteban Herrera, Jr.

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

By Esteban Herrera, Jr.

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

By Esteban Herrera, Jr.

In the e-discovery world, you need to be ready to make your case for using your proposed keyword search terms.

In the case of Custom Hardware Engineering & Consulting, Inc. v. Dowell, 2012 WL 10496, a dispute between the parties as to what search terms were to be used by the

By Esteban Herrera, Jr.

Even for a “small company,” the failure to comply with discovery obligations to preserve electronically stored information (ESI) can be dangerous.  The case of Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. Cal. 2011) involved a truck accident, but the lawsuit quickly reached the point where the plaintiff

By Katie D. Bell

In The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., 685 F.Supp.2d 456 (S.D.N.Y. 2010), Judge Scheindlin—author of the renowned Zubulake decisions—further develops the boundaries of discovery duties in a lengthy opinion. Although the opinion does not require parties to meet a standard of perfection during discovery, the opinion serves as an important guide that offers concrete rules and potentially burdensome standards that attorneys should heed to avoid sanction.

Writing systematically, Scheindlin initially frames the fundamental concepts underlying the nature and scope of a party’s duty to preserve, collect, review, and produce requested records during discovery:

The first [critical issue] is plaintiffs’ level of culpability-that is, was their conduct of discovery acceptable or was it negligent, grossly negligent, or willful. The second is the interplay between the duty to preserve evidence and the spoliation of evidence. The third is which party should bear the burden of proving that evidence has been lost or destroyed and the consequences resulting from that loss. And the fourth is the appropriate remedy for the harm caused by the spoliation. (1)


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