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Electronic Discovery Law Blog Legal issues, news, and best practices relating to the discovery of electronically stored information.

Monthly Archives: October 2012

Court Instructs Parties to Utilize Predictive Coding, Requires Show of Cause to Avoid It


EORHB, Inc. v. HOA Holdings, LLC, No. 7409-VCL (Del. Ch. Oct. 15, 2012) Following argument on partial summary judgment and a motion to dismiss in the Delaware Court of Chancery on Monday, Vice Chancellor J. Travis Laster turned to the topic of a scheduling order and, apparently without outside provocation, addressed the issue of predictive coding:… Continue Reading

Concluding Litigation Hold and Document Retention Policies are “Clearly Unacceptable,” Court Allows Depositions to Determine if Spoliation Occurred


Scentsy Inc. v. B.R. Chase LLC, 2012 WL 4523112 (D. Idaho Oct. 2, 2012)

In this case involving alleged trade dress and copyright infringement and related claims, the court addressed Defendants’ allegations of spoliation and focused in particular on Plaintiff’s litigation hold and document retention policies, which it concluded were “clearly unacceptable.” Recognizing that it was “unlikely” that relevant documents were destroyed, the court nonetheless allowed depositions to be taken at Plaintiff’s expense and indicated its potential willingness to issue an adverse inference instruction or to dismiss some or all of Plaintiff’s claims if it was determined that spoliation occurred.

Court Focuses on Cooperation & Proportionality to Resolve Discovery Disputes


Kleen Prods. LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012) In this multi-defendant litigation, Plaintiffs sought additional discovery, including the identification of additional custodians and the restoration and review of Defendants’ backup tapes.  In resolving these discovery disputes, the court focused on the need for… Continue Reading

International Trade Commission Proposes to Amend Rules of Practice and Procedure

Posted in NEWS & UPDATES

As announced in today’s edition of the Federal Register, the International Trade Commission has proposed to amend its Rules of Practice and Procedure to address “concerns that have arisen about the scope of discovery in Commission proceedings under section 337 of the Tarrif Act of 1930 (19 U.S.C. 1337) (“section 337”).”  “The intended effect of… Continue Reading

For Spoliation, Court Holds Defendant in Contempt, Orders $600,000 to be Paid to Plaintiff, $25,000 to be Paid to the Court


Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4128385 (D. Minn. Apr. 26, 2012); 2012 WL 4135848 (D. Minn. Sept. 18, 2012)

In this case, the Magistrate Judge recommended that an adverse inference be issued, that Defendant be held in contempt and that significant monetary sanctions be imposed upon his determination that two of Defendant’s employees had intentionally spoliated evidence by deleting certain information and by failing to reveal the existence of encrypted data. Upon the parties’ objections, the District Court adopted in part the Magistrate Judge’s recommendation, but increased the monetary sanctions imposed.