Federal Circuit Overturns Adverse Inference Sanction for Spoliation in Adams. v. Dell

Thank you to LegalHold Pro for its report on this decision.  The original post can be seen here. The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp. has been an ongoing saga with actions dating back to the 1990s. In recent years the case had been on hiatus, but that ended on March 18, 2013 when the Federal Circuit announced its ruling on four claims that had been challenged from the earlier District Court opinion. Of particular interest here is that the three-judge panel overturned an adverse inference sanction for spoliation that the District Court had imposed on ASUSTeK Computer Corp. (ASUS), a co-defendant in the case who had brought the appeal. Does this set a precedent  that signals a shift in the threshold ...
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Court’s Broad Definition of “Control” Requires That Litigation Hold Include Independent Agents

The definition of “possession, custody, or control” under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations.  To read ELLBlog’s analysis of Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012) click here.
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This is a Legal Hold – The Law

Great practical tips and critical insights during 90 minute Legal Hold webinar held on January 24, 2013. Participants included John Jablonski, Michael Arkfeld, Josh Gilliland and an in-house attorney from Samsung.   The webinar can be viewed for a modest fee.  As soon as it is posted, it will be available here. This is a Legal Hold – The Law Without question, one of the most egregious mistakes that counsel may make is not properly implementing a legal hold once litigation is reasonably anticipated. Regardless if it is an employment matter, personal injury case, domestic relations matter, business dispute or a class action counsel are required to follow specific court directives when implementing a hold, or otherwise face possible court and ethical sanctions. Join us for this program on legal ...
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Second Circuit Rejects Pension Committee’s Per Se Gross Negligence Standard for Failure to Issue Written Litigation Hold

For those responsible for issuing litigation holds at their organization the Zubulake and Pension Committee decisions are well known. The duty to issue a litigation hold continues to shape the preservation and spoliation landscape, including giving birth to a cottage industry of written litigation hold software, books, white papers and seminars. Remarkably, as the duty to issue a litigation hold continues to spread across the United States, few appellate courts have addressed the consequences of failing to issue a written litigation hold. Even more remarkable, the Second Circuit has not addressed the duty to issue a litigation hold – until now. (The Second Circuit Court of Appeals is the appellate court that hears appeals from the federal district court where the duty to issue litigation holds was born – the ...
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Are Litigation Hold Notices Privileged?

A good article about whether litigation hold notices are privileged when issued by in-house counsel.  To read the article click, click here.    
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Judge Scheindlin – Written Legal Holds: Just Do It!

LegalHoldPro just posted an unofficial transcript of a panel discussion at the Georgetown Law Center's Advanced E-Discovery Intitute with Judges Scheindlin, Rosenthal, Facciola, Rosenbaum, Nolan and Peck.  The panel was moderated by Ken Withers of the Sedona Conference.  Here is the notable quote about issuing written litigation holds: …I know that a lot of the world is unhappy with me about this litigation hold issue, but I never understood what the big problem is. Write it up, protect yourself, it’s credible, you can defend it, and still… I’m not going to back off!  I would go all over the country saying, “Why not issue a written litigation hold?”  Spell out for your company what they have to do. Instead of fighting with me about it – just do it. Just do it.  You will have a defensible ...
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Establishing Prejudice: Putting the Brakes on Spoliation Motions

Davis v. Grant Park Nursing Home, LP, 2010 U.S. Dist. LEXIS 118853 at *3 (D.D.C. Nov. 9, 2010) has been on our to-do list, but our good friend The Bow Tie's Blog does a very nice job of discussing the issues raised in this very short opinion by Magistrate Judge Facciola.  In short, Judge Facciola felt plaintiff's motion for sanctions (due to a failure to preserve evidence) was premature. The motion was dismissed until the full nature of any prejudice realted to the loss can be gleaned from a full record developed during discovery.  As discussed throught our blog, a court must find three things before it can sanction a party for failing to preserve evidence: 1. A duty to preserve, 2. the destruction of relevant data and 3. prejudice caused ...
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Corporations Burdened by Preservation Seek Change in Civil Rules

 LCJ Submits Formal Comment on PreservationNov 12, 2010 LCJ submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to preservation of information in litigation. LCJ submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to preservation of information in litigation. The current ad hoc patchwork of preservation obligations created by individual courts is creating burdens on litigants far beyond what anyone would consider reasonable. As detailed in the Comment, the current paradigm involving preservation and spoliation of ESI is undermining the “just, speedy and inexpensive” determination of actions. It has forced litigants to spend millions of dollars to address an unquantifiable risk in computing systems that were not designed for litigation holds. Meaningful rule amendments would supply the guidance necessary to help ...
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Grasping Legal Holds: What Organizations Need to Know

The cover story of the September/October 2010 issue of the Information Management Journal offers important insights and tips for implementing legal holds.  Several high-profile decisions make it clear that courts expect organizations to manage legal holds competently and will issue sanctions against those that do not. Taking the steps outlined in this article will ensure your organization is well-prepared.
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Dangerous Holds – Short Video on Pension Committee Opinion

With recent litigation hold decisions like Rimkus, D'Onofrio and Victor Stanley II, this short video discusses the case that started it all this year, Pension Committee.  Click on the LTN banner below to view Monica Bay (editor of Law Technology News) interview John Jablonski (principle author of this blog, contributor to LTN, the Information Management Journal, EDD Update and co-author of 7 Steps for Legal Holds of ESI and Other Documents) about "Dangerous Holds" videotaped during LegalTech earlier this year:
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