Archive: November 2015

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Federal Rule Changes Affect e-Discovery – Are You Ready This Time?
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Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”
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“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

Federal Rule Changes Affect e-Discovery – Are You Ready This Time?

Learn Strategies for Litigating in the New Framework

Join Us For a Complimentary 3 Hour CLE

Important updates and revisions to the Federal Rules of Civil Procedure take effect on December 1, 2015, absent (unlikely) action by Congress. These changes will undoubtedly have a substantial effect on litigation (and pre-litigation) strategies and practice, particularly with regard to discovery. Issues addressed by the amendments include — among others — the scope of discovery, responses and objections to requests for production, and preservation (or loss) of electronically stored information.

Please join us for a lively and informative strategic discussion of the amendments, the ways they will affect your future practice and cases, and the steps you can take to address and embrace the new paradigms shaped by these changes. In-house counsel will join members of the K&L Gates global e-Discovery Analysis & Technology practice group to address the significance of these rule changes, their ethical implications for legal practitioners, the opportunities for advocacy afforded by the rules’ increased attention to proportionality, and the practical effects of these rule changes on record preservation practices.

Live programs will take place on December 1st in Seattle, WA and December 3rd in Pittsburgh, PA.  These programs will also be available via webinar.

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Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude “Plaintiff’s use of any argument or evidence of alleged spoliation” where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s “old computer” and to hire a third party to search for and recover relevant emails and documents from the same.  Thus, the court found that Plaintiff failed to establish prejudice.

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“The trial court erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”

Cook v. Tarbert Logging, Inc., —P.3d—, 2015 WL 5771329 (Wash. Ct. App. Oct. 1, 2015)

In this case, Plaintiffs failed to preserve the pickup truck involved in the at-issue accident, including the airbag control monitor (ACM), despite first allowing their own expert to inspect it.  To address the loss, Plaintiffs’ expert was precluded from testifying as to his opinion regarding the drivers’ speed and ultimately was not called as a witness.  Defendants were allowed to present evidence regarding Plaintiffs’ failure to preserve and to inform the jury of the expert’s inspection.  This created the false inference that the expert’s conclusions were unfavorable to the plaintiffs, which the plaintiffs were not permitted to rebut (the expert had in fact concluded that Plaintiff had been travelling at a “slower and safer speed” than the defendant at the time of the accident).  On appeal, the court determined that the trial court “erred in concluding that Washington has recognized a general duty to preserve evidence; it has not.”  The court also concluded that the trial court abused its discretion by allowing Defendants to tell the jury about the expert and his inspection without also allowing rebuttal from the plaintiffs.  Accordingly, the court reversed the case in part and remanded for a new trial.

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