Legal issues, news and best practices relating to the discovery of electronically stored information.
Formal Opinion 749
In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing “[a] lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.” The committee summarized its detailed analysis as follows:
Key Insight: Spoliation of video evidence. Evidence must have existed and been in the control of a party.
Nature of Case: civil rights action
Electronic Data Involved: surveillance and taser video
Keywords: spoliation sanctions, multi-step analysis, Rule 37(e), routine retention policy.
Key Insight: accessibility of data, whether counsel had meaningful discussions with his client regarding the ESI agreement, whether the meet-and-confer was meaningful
Nature of Case: employment discrimination
Electronic Data Involved: e-mail
Keywords: cost shifting, ESI agreement, meaningful negotiation, meet-and-confer, undue burden or expense
Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017)
In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure to preserve web browser history and related information for persons responsible for the preparation of an allegedly defamatory presentation where Plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.
Key Insight: whether sanction inappropriate absent bad faith
Nature of Case: personal injury
Electronic Data Involved: video footage
Keywords: surveillance footage, adverse inference, preservation letter, spoliation, Eleventh Circuit, prejudice, significant impairment, other available evidence
Key Insight: Courts have leeway for creative sanctions proportional to the spoliation (denying all evidentiary objections)
Nature of Case: Fraud
Electronic Data Involved: E-mails
Keywords: serendipity, CFTC, magistrate judge
Key Insight: Court used a spoliation test non-specific to electronic discovery, spoliation not found due to one defendant not in control of the evidence and the other destroying the evidence without bad faith and not when litigation was reasonably foreseeable
Nature of Case: Collision
Electronic Data Involved: ECM data
Keywords: ECM, electronic control module, spoliation
Key Insight: Discovery requests must be proportional; limited to scope/time frame
Nature of Case: Wrongful termination, defamation
Electronic Data Involved: E-mails, text messages
Keywords: Retaliation, discrimination, Louisiana Office of Alcohol and Tobacco Control
Key Insight: Defense was allowed to ask neutral questions about destruction of SDM data, even without intent to deprive, without using FRCP 37(e).
Nature of Case: Product liability
Electronic Data Involved: SDM data
Keywords: SDM, sensory diagnostic module, spoliation, class action
Key Insight: whether the loss of a cell phone can give rise to an adverse inference re location data
Nature of Case: insurance fraud
Electronic Data Involved: lost cell phone
Keywords: spoliation; adverse inference
Copyright © 2022, K&L Gates LLP. All Rights Reserved.