Archive: April 2011

1
Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act
2
Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith
3
The Sedona Conference® Publishes “Database Principles”
4
Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

Court Declines to Compel Government to Contribute to Creation of Database to Ease Defendant’s Discovery Burden, Recommends Application for Assistance Pursuant to Criminal Justice Act

United States v. Salyer, Cr. No. S-10-0061 LKK [GGH], 2011 WL 1466887 (E.D. Cal. Apr. 18, 2011)

“Unlike the usual discovery dispute—not enough produced—the dispute between the parties [in this case] involves too much produced, in too many formats, and whether the defense has been given a fair opportunity within the parameters of an adversary system of criminal justice to make use of that discovery.”

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Court Rejects “Shifting Duty” Theory of Preservation, Denies Sanctions Absent Showing that Crucial Evidence was Destroyed in Bad Faith

Point Blank Solutions, Inc. v. Toyobo Am., Inc., No. 09-6116-CIV, 2011 WL 1456029 (S.D. Fla. Apr. 5, 2011)

Plaintiffs sought sanctions for defendants’ alleged spoliation of evidence, including email correspondence, communications with other body armor manufacturers, and internal communications, among other things.  Finding that plaintiffs failed to show that crucial evidence was destroyed in bad faith, as is required for an adverse inference in the 11th Circuit, the court denied plaintiffs’ motion for sanctions.

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The Sedona Conference® Publishes “Database Principles”

In its most recent publication (available now in its Public Comment Version) the Sedona Conference takes on another difficult issue of e-discovery:  the preservation and production of databases and database information.  The publication, The Sedona Conference® Database Principles: Addressing the Preservation & Production of Databases and Database Information in Civil Litigation, is intended to “provide practical guidance and recommendations to both requesting and producing parties” and to “simplify discovery in civil actions involving databases and information derived from databases.”  In furtherance of those goals, the publication includes an informative introduction to the issue of preserving and producing database information, a discussion of the application of some of the existing Sedona Principles, and a discussion of the six new Database Principles and their practical application.  The six new Database Principles are:

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Defendant’s Failure to Preserve Results in Sanctions, Including Order for Defense Counsel to Search All of Defendant’s Electronic Media and Hard Copy Files for Responsive Information

Northington v. H&M Int., No. 08-CV-6297, 2011 WL 663055 (N.D. Ill. Jan. 12, 2011); Northington v. H&M Int., No. 08 C 6297, 2011 WL 662727 (N.D. Ill. Feb. 14, 2011)

In this case, plaintiff sought sanctions for defendant’s failure to preserve and resulting failure to produce electronically stored information (“ESI”).  Upon finding that defendant’s efforts to preserve evidence had been “reckless and grossly negligent”, the magistrate judge recommended sanctions, including that defense counsel be required to conduct a thorough search for ESI and hard copy; that the jury be instructed regarding defendant’s failure to preserve; that defendant be precluded from defending itself by asserting an absence of discriminatory statements; and that defendant pay plaintiff’s reasonable costs and fees.  The recommendations were later adopted in full by the District Court.

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