Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)  

In this case, the Southern District of New York imposed an adverse inference against defendants for their failure to preserve text messages that were in the possession of a non-party.  Specifically, Judge Sweet imposed an adverse inference against defendants based upon the … Continue Reading

Oops I Did It Again — Court Rules that Two Separate Productions of the Same Privileged Materials Was Completely Reckless

Despite the existence of a stipulated clawback agreement (that was never presented to the Court to be So Ordered) that provided “[i]nadvertent production of privileged documents does not operate as a waiver of that privilege,” the Court found defendants’ claim to privilege was waived by the inadvertent and “completely reckless” production of privileged materials.  In reaching its conclusion, the Court … Continue Reading

Because the Court Concluded Plaintiff’s Counsel Failed to Engage in Meaningful Meet and Confer, Court Orders Counsel (not the Plaintiff) to Bear the Costs of Production

In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”).  The Agreement was presented to the Court and represented to be the product of mutual negotiation.  As … Continue Reading

Your Litigation Hold Must be Generally Broad And Specifically Tailored

In Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones, Jr., denied Plaintiff Eshelman’s motion seeking a jury instruction in response to Puma Biotechnology Inc.’s (“Puma”) failure to preserve (or identify in its litigation hold notice the need to preserve) internet web browser and search histories.  In denying Eshelman’s request, Judge Jones … Continue Reading

The Seven Commandments of Proportionality in ESI*

In In Re State Farm Lloyds, (Texas Supreme Court [May 26, 2017] 2017 WL 2323099), the Supreme Court of Texas elaborated on the standard applied to evaluate and resolve production disputes. Specifically, the Court opined (perhaps not surprisingly) that of “the guiding principles informing the exercise of discretion over electronic-discovery disputes, proportionality is the polestar.” Id. at *15. More importantly … Continue Reading

Surreptitious Cyber-Conduct results in New York County Decision Striking Defendant’s Answer

In a decision dated May 26, 2017, Justice Chan of the Supreme Court of the State of New York, New York County, struck the defendant’s answer.    Although the Court acknowledged that the imposition of this particular sanction was “severe,” Justice Chan deemed it warranted in light of the “egregious” and deliberate misconduct of the defendant.

The substantive allegations in the … Continue Reading

Just When You Thought It Was Safe To Use Your Company Computer*

In Miller v. Zara USA Inc., (2017 N.Y. Slip Op. 04407, 1st Department June 6th, 2017), the First Department held that where, as here, a company’s written employment guidelines clearly provide that employees have no reasonable expectation of privacy when using a company-issued computer for personal purposes, no claim of attorney-client privilege over personal documents on that computer can … Continue Reading

A Federal Court’s Award of Attorneys’ Fees As a Sanction for Bad-Faith Conduct Cannot be Punitive

Most practitioners are familiar with the federal sanction powers as codified in the Federal Rules of Civil Procedure (i.e., Rules 11, 26, 30 and 37). However, all federal courts also possess inherent sanction power that is conceivably broader than those articulated under the various Rules.  And, notwithstanding that this is an ESI blog, the Court’s inherent sanction powers are not … Continue Reading

An Attorney Acting ‘With a Pure Heart and An Empty Head’ is Sanctioned for Spoliating Emails

According to the Complaint filed in Michael Distefano and Nicole Distefano v Law Offices of Barbara H. Katsos, PC and Barbara H. Katsos, Michael DiStefano and a non-party were owners of a limited liability company that was the franchisee of three Cold Stone Creamery Inc. ice cream parlors.  In 2006, the three stores suffered financial difficulties due to an extended … Continue Reading