Archive: April 2017

1
U.S. Supreme Court Considers “Inherent Authority to Sanction a Litigant for Bad-faith Conduct” by Ordering Payment of Opponent’s “Legal Fees,” Reverses and Remands
2
Court Concludes Rule 37(e) Does Not Apply to “situations where, as here, a party intentionally deleted the recording”
3
Sedona Principles Revised, Public Comment Welcomed

U.S. Supreme Court Considers “Inherent Authority to Sanction a Litigant for Bad-faith Conduct” by Ordering Payment of Opponent’s “Legal Fees,” Reverses and Remands

Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017)

In this rare opinion from our Supreme Court addressing discovery, the court considered “a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees.” The court held that “such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.” Because neither the trial court nor the appellate court applied the correct legal standard, the judgment of the Court of Appeals (9th Cir.) was reversed and the case remanded for further proceedings.

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Court Concludes Rule 37(e) Does Not Apply to “situations where, as here, a party intentionally deleted the recording”

Hsueh v. N.Y. State Dep’t of Fin. Servs., No. 15 Civ. 3401 (PAC), 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)

In this case arising from claims of sexual harassment at work, the court found that an adverse inference was the appropriate remedy for Plaintiff’s deletion of a recorded conversation with an HR representative. In the course of its analysis, the court agreed with Defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording” and thus relied upon inherent authority to impose sanctions.

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Sedona Principles Revised, Public Comment Welcomed

The Sedona Conference has published revisions to its foundational Sedona Principles, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. As stated in the preface, the Third Edition was “necessitated by an even greater explosion in the volume and diversity of forms of electronically stored information, the constant evolution of technology applied to eDiscovery, and by further amendments to the Federal Rules of Civil Procedure” as well as by many years of experience in e-discovery.  Thus, “[t]he Third Edition has been thoroughly updated to take into account evolving views on electronic discovery over the past decade, based upon the collective experiences of the WG1 membership in facing the myriad of practical issues that are influencing the development of the law in this area, the numerous important court decisions across the country, and, of course, the 2015 amendments to the Federal Rules [of] Civil Procedure.”

Interested parties are invited to “join the dialogue and expand the consensus” around the revised principles and may provide comments to the drafting committee until June 30, 2017.

The Sedona Principles, Third Edition is available for download, here.

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