Archive: January 27, 2016

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Magistrate Judge Applies Newly Amended Rule 37(e), Addresses Threshold Question of Whether At-Issue Emails were “Lost”

Magistrate Judge Applies Newly Amended Rule 37(e), Addresses Threshold Question of Whether At-Issue Emails were “Lost”

CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (AT) (JCF), 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016)

In this case, which raised “significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for the destruction of electronically stored information,” Magistrate Judge James C. Francis IV addressed Plaintiffs’ intentional alteration of relevant emails, as evidenced by the discovery of the original emails “which had been deleted, albeit not without leaving a digital imprint.” Finding that newly amended Rule 37 applied and that remedies were available pursuant to both subsections (e)(1) and (e)(2), the Magistrate Judge noted that “drastic sanctions are not mandatory” and ordered that Plaintiffs were precluded from relying on “their version” of the emails to demonstrate notice to Defendants of the use of the at-issue mark and that Plaintiffs would bear the “costs, including reasonable attorney’s fees, incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.”

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