Gibbons Law Alert

Gibbons Law Alert

Tagged: Data Preservation

New York State Courts Look to Adopt Rules Requiring Parties to Discuss E-Discovery at the Outset of Litigation

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 31, 2013

The E-Discovery Working Group has recommended changes to the New York State Court rules concerning e-discovery that would significantly expand litigants’ obligations to confer concerning anticipated e-discovery issues. Currently, only the rules that govern cases pending before the Commercial Division require that parties confer about expected e-discovery issues at the outset of a litigation. (See Section 202.70 Rule 8 of the Uniform Rules). The E-Discovery Working Group has not only recommended that this rule be expanded to include all New York State Courts, but also to provide specific guidance concerning what e-discovery issues ought to be discussed by the parties. These issues include identifying potentially relevant categories of data and relevant computer servers, implementing measures to preserve relevant information, agreeing to procedures for parties to recall any privileged information that they provide by accident and discussing the likely cost and allocation of e-discovery between the parties.

Florida Joins the Growing Number of States That Have Adopted Specific Rules Addressing Electronic Discovery

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Posted in E-Discovery: Legal Decisions and Court Rules

On October 22, 2012

Effective September 1, 2012, Florida joined the long list of states that have adopted specific rules of procedure governing electronic discovery, which follows the July 5, 2012, announcement by the Supreme Court of Florida of its proposed amendments to seven civil procedure rules aimed at addressing the specific dilemmas facing litigants when e-discovery is sought. Florida’s Supreme Court approved and adopted the amendments in a formal opinion issued on July 5, 2012. While these amendments generally mirror the amendments to the Federal Rules of Civil Procedure first adopted by the United States Supreme Court in 2006, they diverge from the Federal Rules in some critical areas.

Broken Record? Maybe, But Even Government Entities Cannot Escape the Failure to Preserve

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On October 19, 2012

Obtaining electronic discovery from a city or municipality in civil litigation can be a slow process. But, in DMAC LLC and Fourmen Construction, Inc. v. City of Peekskill, plaintiffs’ task was made impossible because of the City of Peekskill’s failure to implement a “formal e-mail retention policy,” leaving it up to the “sole discretion” of City staff and elected officials whether to retain or delete their e mails. When the City and other defendants were sued in 2009 for stopping a real estate development project that began back in 2007, allegedly for political reasons, that lack of any e-mail retention policy came back to haunt the defendants.

New York Court Dismisses $20 Million Case as Spoliation Sanction

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Posted in E-Discovery: Legal Decisions and Court Rules

On May 18, 2012

In a recent decision out of the New York State Supreme Court in Manhattan, a spoliator’s worst fears were recognized when the Court dismissed its entire Complaint as a sanction for failing to preserve electronic evidence. The decision, 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), is instructive in its clear statement and analysis of New York’s spoliation law and its demonstration of the Court’s willingness to impose the ultimate spoliation sanction where warranted.

ESI Guidelines for the Bankruptcy Case: The ABA’s Electronic Discovery in Bankruptcy Working Group Issues Interim Report

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Posted in Technology Developments and Issues

On May 14, 2012

Although the Federal Rules of Civil Procedure were updated in 2006 specifically to deal with electronically stored information (“ESI”), Bankruptcy Courts and Bankruptcy practitioners have had little bankruptcy-specific guidelines for managing ESI and electronic discovery issues. As a result, the ABA commissioned the Electronic Discovery (ESI) in Bankruptcy Working Group “to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve [ESI] in bankruptcy cases.” On March 15, 2012, the Working Group published their interim report on ESI in bankruptcy cases in an effort to invite and stimulate comments from a wider audience regarding how ESI issues should be handled in (i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.

Play Nice or Pay the Price: Failing to Cooperate in Creating Preservation Protocols Can Result in Significant Consequences

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Posted in E-Discovery: Legal Decisions and Court Rules

On March 20, 2012

The dual issues of over-preservation and proportionality took center stage in a recent Southern District of New York class and collective action litigation, leading to a Magistrate’s opinion in Pippins v. KPMG, No. 11-377 (S.D.N.Y. Oct. 7, 2011), and a District Court’s affirmance in Pippins v. KPMG, Civ. No. 11-377 (S.D.N.Y. Feb. 3, 2012), which are sending shock waves through the e-discovery community. The effect of those shock waves here is particularly acute for FLSA and other employment-related class action defendants where the targeted company often possesses and controls ESI pertaining to sometimes thousands of potential plaintiffs.

New York’s Appellate Courts Surface on Litigation Hold – First Department Confirms Reasonable Anticipation of Litigation Requires Implementation of Litigation Hold

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 21, 2012

New York’s First Department Appellate Division is the first New York state appellate court to expressly adopt the “reasonable anticipation trigger” articulated in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003): “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id. at 218. On January 31, 2012, the First Department affirmed the November 9, 2010 Order of the Honorable Richard B. Lowe III which awarded an adverse inference sanction to plaintiff, Voom HD Holdings LLC (“Voom”) against defendant EchoStar Satellite, L.L.C. (“EchoStar”). Voom H.D. Holdings LLC v. EchoStar Satellite LLC, 2012 N.Y. Slip Op. 00658 (1st Dep’t 2012). The First Department found the Zubulake standard to be “harmonious” with existing New York precedent in the traditional discovery context and “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.”

Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On December 22, 2011

The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

The Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year’s Pivotal E-Discovery Case Decisions

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On November 16, 2011

The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

The “Dos” and “Don’ts” of Litigation Hold Notices: Deconstructing the Effective Litigation Hold Notice

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Posted in Litigation Preparedness and Strategies

On November 11, 2011

The “Dos” and “Don’ts” of litigation hold notices were discussed at the Fifth Annual Gibbons E-Discovery Conference on November 3, 2011. The distinguished panel included the Honorable John J. Hughes, U.S.M.J. (Ret.), the Director and Chair of the firm’s E-Discovery Task Force Mark Sidoti, and Melissa DeHonney, an associate in the Gibbons Business & Commercial Litigation Department and member of the firm’s E-Discovery Task Force.

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