Archive: August 2013

1
Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor
2
Willful or Grossly Negligent Destruction of ESI Allows Presumption of Prejudice
3
Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment
4
Timing of Defendant’s Actions Weighs Heavily in Analysis of Spoliation Sanctions
5
Proposed Amendments to Federal Rules of Civil Procedure to be Published for Public Comment

Court Warns “Continuing Problems” with Document Production Will Result in Order to Retain an e-Discovery Vendor

Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR), 2013 WL 3967750 (N.D. Cal. July 31, 2013)

Plaintiff sought to compel Defendants’ production of all responsive documents and also sought sanctions, including attorneys’ fees and an order requiring Defendants “to retain an e-discovery vendor to conduct a thorough and adequate search for responsive electronic documents.”  Acknowledging that it shared Plaintiff’s concerns “about the inadequacy of Defendants’ search for responsive documents,” the court granted Plaintiff’s motion to compel and also granted the request for attorneys’ fees (although at a reduced rate).  The court declined to order the retention of an e-discovery vendor “at this time,” but warned that such an order would be entered if problems with Defendants’ document production continued.

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Willful or Grossly Negligent Destruction of ESI Allows Presumption of Prejudice

Sekisui Am. Corp. v. Hart, —F. Supp. 2d—, 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013)

Previously in this case, the Magistrate Judge declined to impose spoliation sanctions for Plaintiff’s deletion of emails and other ESI belonging to two important custodians absent a showing that the defendants were prejudiced by the destruction.  Upon Defendants’ objections, the district court reversed the denial of sanctions and imposed an adverse inference and monetary sanctions.  In doing so, the court reasoned that prejudice was presumed because the evidence was destroyed intentionally and explained that no showing of malice was required.

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Proposed Amendments to Civil (and Bankruptcy) Rules Posted for Public Comment

The Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure is now published online for public comment.  The proposed amendments to the civil rules would affect rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and the Appendix of Forms.  Many of the proposed amendments are quite significant, particularly with regard to discovery, and our readers are therefore encouraged to review them carefully and share their thoughts with the Advisory Committee.

All written comments are due by February 15, 2014, and may be submitted electronically or by mail.  Members of the public may also present testimony on the proposed changes at any of three public hearings, scheduled for November 7th in Washington, D.C.; January 9th in Phoenix, AZ; and February 7th in Dallas, TX. 

To learn more about all of the proposed amendments and for instructions regarding how to submit your comments, click here.  For those interested only in the proposed amendments to the Rules of Civil Procedure, click here, to be taken directly to a discussion of those proposals.

Timing of Defendant’s Actions Weighs Heavily in Analysis of Spoliation Sanctions

Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, No. 11-13335, 2013 WL 3983230 (E.D. Mich. Aug. 1, 2013)

For Defendant’s bad faith failure to preserve his cellular phone and his deletion of 270,000 files from his personal laptop using scrubbing software, the district court adopted the recommendations of the Magistrate Judge and ordered monetary sanctions equaling $35,000 and an irrefutable adverse inference that the phone and deleted files would have contained information unfavorable to the defendant, including that Defendant was involved with the company allegedly created for the “pass-through” scheme on which Plaintiff’s claims were based.

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Proposed Amendments to Federal Rules of Civil Procedure to be Published for Public Comment

At its June meeting, the Committee on Rules of Practice and Procedure (“The Standing Committee”) unanimously approved for publication and public comment proposed amendments to the Federal Rules of Civil Procedure.  The proposed amendments would affect rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37.  A proposed change to Rule 84 (namely, its abrogation) may also be published for public comment.  Many of the amendments are quite far reaching and would have a substantial impact, particularly on discovery.

For more information, Click Here to read the May Report of the Advisory Committee on Civil Rules, where all proposed amendments are discussed in detail, and check back here on August 15th for a link to the proposed amendments as published for public comment.

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