FRCP 37(e) Preservation (effective Dec. 1, 2015)

First Pittsburgh “Under the Wire” CLE Seminar Features Presentation on E-Discovery “Hot Topics”

Nov 18 2022

The Pittsburgh office of K&L Gates recently hosted its first “Under the Wire” CLE seminar on November 15th, 2022. The CLE seminar was the first of a new series of in-person CLE events hosted at the K&L Gates Pittsburgh office.

At the inaugural seminar, Daniel Miller (a partner in our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Laura Veith (an associate focusing on commercial litigation) presented on a number of e-discovery “hot topics.” The presentation emphasized how record preservation and collection efforts must adapt in light of clients’ increasing use of new technologies, including mobile devices and applications present on those devices, ephemeral messaging, and enterprise collaboration platforms, such as Microsoft Teams and Slack.

iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions

Sep 23 2022

On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after the message is sent. Recipients of such messages receive an alert that the iMessage was unsent or edited, but do not see the specific changes.

America West Bank Members v. State of Utah (D. Utah 2021)

Nov 10 2021

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Carrington v Graden, (S.D.N.Y. 2020)

Sep 28 2020

Key Insight: Plaintiff was discovered to have fabricated emails. Court awarded over $500,000 in damages to Defendant.

Nature of Case: antitrust litigation

Electronic Data Involved: Emails

Keywords: sanctions,m fabricated evidence

View Case Opinion

Alsadi v. Intel Corporation (D. Az., 2020)

Jul 17 2020

Key Insight: Court ruled that ESI is expansive and includes information stored electronically, not just information on a computer system as plaintiffs argued. FRCP overrules state law or inherent power to sanction. No negative inference allowed.

Nature of Case: negligence, loss of consortium

Electronic Data Involved: records of ambient gas levels

Keywords: sanctions, negative inference, inherent authority

View Case Opinion

QueTel Corp v. Hisham Abbas (4th Cir., 2020)

Jul 16 2020

Key Insight: Defendants had deleted relevant files just before forensic imaging occurred. Court sanctioned Defendant and issue permanent injunction.

Nature of Case: Copyright infringement

Electronic Data Involved: Source Code and files on laptops

Keywords: sanctions, injunctions, source code

View Case Opinion

Bolding v. Banner Bank (W.D. Wash. May 22, 2020)

May 22 2020

Key Insight: Defendant deleted backup tapes after litigation hold notice issued. Spoliation occurred, but no default judgment

Nature of Case: class-action employment

Electronic Data Involved: Backup tapes

Keywords: sanctions, backup tapes, destruction

View Case Opinion

WeRide Corp. v. Kun Huang (N.D. Cal., 2020)

Apr 24 2020

Key Insight: Defendant’s failure to suspend document retention policy resulted in loss of evidence and court ordered judgment against Defendant. Plaintiff also showed evidence that USB Drives had been inserted into a shared laptop and files deleted. Defendants actions had made it impossible for Plaintiff to prove case.

Nature of Case: Trade Secrets

Electronic Data Involved: USB Drives inserted into company laptop; Email accounts

Keywords: records retention policy, spoliation, sanctions

View Case Opinion

Vaks v. Quinlan, et al. (District of Massachusetts, 2020)

Feb 24 2020

Key Insight: plaintiff violated the protective order by filing a pleading attaching confidential documents

Nature of Case: employment discrimintation

Electronic Data Involved: confidential documents protected under the protective order

Keywords: protective order, confidentiality

View Case Opinion

Nevis v. Rideout Memorial Hospital, et al. (Eastern District of California, 2020)

Feb 06 2020

Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so

Nature of Case: personal injury and liability

Electronic Data Involved: plaintiff’s cell phone and text messages

Keywords: spoliation, text messages, phone records, cell phone, preservation

View Case Opinion

Tag:FRCP 37(e) Preservation (effective Dec. 1, 2015)