Were Deleted Emails A Failure to Preserve?

15 Sunday Nov 2015

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Emails, Preservation

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E-Discovery, Emails, K&L Gates, Motion to Exclude, Preservation, Spoilation

Prejudice and to Avoid “Confusing the Issues,” by Electronic Discovery Law, K&L Gates Blog

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. . . .

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Angry Judge Sanctions Defendants For E-Discovery Spoilation.

19 Tuesday May 2015

Posted by Celia C. Elwell, RP in Discovery, E-Discovery, Preservation, Sanctions

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Data Preservation, Discovery, Doug Austin, E-Discovery, e-Discoverydaily Blog, Motion to Compel, Spoilation

Tired of the “Crap”, Court Sanctions Investors and Lawyers for Several Instances of Spoliation, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/k3d74yu

In Clear-View Technologies, Inc., v. Rasnick et al, 5:13-cv-02744-BLF (N.D. Cal. May 13, 2015), California Magistrate Judge Paul S. Grewal sanctioned the defendants $212,320 and also granted a permissive adverse jury instruction that allows the presumption that the defendants’ spoliated documents due to a series of ‘transgressions’ by the defendants and their prior counsel.

You’ve got to love an order that begins this way:

‘Deployment of ‘Crap Cleaner’ software—with a motion to compel pending. Lost media with relevant documents. False certification that document production was complete. Failure to take any steps to preserve or collect relevant documents for two years after discussing this very suit. Any one of these transgressions by {the defendants} and their prior counsel might justify sanctions. Taken together, there can be no doubt.’ . . .

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Texas 2-Step For Spoilation of Evidence.

24 Thursday Jul 2014

Posted by Celia C. Elwell, RP in Evidence, Spoilation, Texas Supreme Court

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Bow Tie Blog, Spoilation, Texas Supreme Court

Spoilation, Texas Style, by Joshua Gilliand, Bow Tie Blog

http://bowtielaw.wordpress.com/2014/07/16/spoliation-texas-style/

The Texas Supreme Court has clarified the standards for spoliation (in Texas). The rule is that Texas has a two-step process: (1) the Trial Court must determine, as a question of law, whether a party spoliated evidence, and (2) if spoliation occurred, the Court must assess an appropriate remedy. Brookshire Bros., Ltd. v. Aldridge, 2014 Tex. LEXIS 562, 3-4 (Tex. July 3, 2014).

This Allemande Left and Do So Do requires a Trial Court to find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. Brookshire Bros., Ltd., at *3. This is to be done outside the presence of the jury, so the accused party is not swung around before the jurors, causing any prejudicial effect by the presentation of evidence that is unrelated to the facts underlying the lawsuit. Id. (and memories of 7th grade square dancing). . . .