Gibbons Law Alert

Gibbons Law Alert

Tagged: Preservation

SDNY Expands Interpretation of “Possession, Custody, or Control” – Orders Adverse Inference Against Company for Spoliation of Text Messages by Non-Party, Independent Contractor on Personal Phone

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Posted in General Litigation

On April 2, 2018

In Van Zant, Inc. v. Pyle, et al., 270 F. Supp. 3d 656 (S.D.N.Y. 2017), the Southern District of New York ordered an adverse inference against Los Angeles-based Cleopatra Entertainment LLC (“Cleopatra”), based on the conduct of its independent contractor and non-party to the case, Jared Cohn (“Cohn”). Cohn had been hired by Cleopatra to write and direct a motion picture about the 1977 plane crash that killed two members of the Southern rock band Lynyrd Skynyrd. During the film’s production, Cleopatra and Cohn enlisted the aid of Lynyrd Skynyrd drummer Artimus Pyle (“Pyle”), who, along with other surviving band members (and the estates of deceased members), was party to a 1988 Consent Order that set limits on the permissible use of the Lynyrd Skynyrd name; the likenesses, names, and biographical material of its members; the band’s history; and related items. The Consent Order also detailed the respective parties’ rights to royalties from Lynyrd Skynyrd music, merchandise, and other proceeds, and prohibited the parties from “implicitly or through inaction authoriz[ing] the violation of the terms [of the agreement] by any third party.” Pyle initially did not make Cleopatra aware of the Consent Order, but plaintiffs (also parties to the 1988 Consent Order) sent Cleopatra a copy, along with a cease and desist letter, after learning...

Third Circuit Finds That Failing to Produce Original Documents May Constitute Sanctionable Spoliation

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Posted in Discrimination / E-Discovery: Legal Decisions and Court Rules

On March 28, 2012

Although in recent years employers have become increasingly focused on the preservation, discovery and production of electronically-stored information, the Third Circuit’s January 4, 2012 decision in Bull v. United Parcel Service serves as a reminder to companies that original documents can and often do play a critical role in employment litigation matters. The preservation and discovery of originals should not be overlooked. Employers should be certain to both request original documents in discovery (and pursue their production through motion practice as necessary) and take necessary steps to preserve originals when litigation is threatened or commenced.

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.

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 6, 2011

Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.

Pennsylvania Court Orders Plaintiff to Disclose Facebook and MySpace Passwords, User Names, and Log in Names to Defendant

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Posted in E-Discovery: Legal Decisions and Court Rules

On June 10, 2011

A Pennsylvania trial court recently became one of a growing number of courts to rule that a plaintiff’s non-public Facebook and MySpace postings are discoverable. On May 19, 2011, in Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011) the Court of Common Pleas of Pennsylvania granted the defendant’s motion to compel the plaintiff, a former employee of the defendant, to disclose his Facebook and MySpace passwords, user names and log in names. Notably, the Court reasoned that because the plaintiff voluntarily posted all of the pictures and information on his Facebook and MySpace sites, he had no reasonable expectation of privacy to the postings although the posts were on non-public pages.

Delaware Court of Chancery Adopts ESI Preservation Guidelines

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

On January 24, 2011

Following the lead of other state courts, Delaware’s Court of Chancery — known for handling of some of the nation’s most complex corporate matters — has adopted guidelines for the preservation of electronically stored information (“ESI”). The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party’s possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice.

Lawyers for Civil Justice Plea for Change in ESI Preservation Rules; Report Submitted to Civil Rules Advisory Committee

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Posted in Litigation Preparedness and Strategies

On December 7, 2010

Lawyers for Civil Justice (“LCJ”) recently submitted a formal comment to the Advisory Committee on Civil Rules regarding problems related to the preservation of information in litigation. The comment, which can be found here, pleads for a change in the current approach to preservation of electronically stored information (“ESI”), in which preservation obligations are largely created by individual courts on an ad hoc basis. This approach, LCJ points out, creates heavy burdens on litigants: The cost of preservation is too high, the risk of spoliation sanctions is too great, and the impact of ancillary litigation proceedings on discovery disputes is too debilitating. Substantive issues in many cases have become overshadowed by issues of preservation.

Expert Panel Offers Advice On Executing Effective Legal Holds Following Pension Committee, Rimkus and Victor Stanley II At Gibbons Fourth Annual E-Discovery Conference

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Posted in Litigation Preparedness and Strategies

On November 8, 2010

The failure to properly implement, monitor and refine legal holds can have devastating results, transforming manageable legal issues into high-stakes nightmares. To offer guidance on avoiding this, on Thursday, October 28, 2010, Gibbons P.C. held its Fourth Annual E-Discovery Conference, where it assembled a panel of experts for a roundtable discussion on legal hold best practices after the issuance this year of three must-read decisions on this topic: Pension Committee, Rimkus and Victor Stanley II.

Employee Personal Use of Company-Owned Electronic Devices in the Wake of Stengart and Quon

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Posted in E-Discovery: Legal Decisions and Court Rules / Policies and Handbooks

On November 3, 2010

In this technology age, employees increasingly make personal use of workplace electronic communications applications. The legal ramifications of such personal use – and how employers can create policies that balance the right to monitor the workplace with employees’ expectations of privacy – were examined in an informative panel discussion, “Electronic Communications Policies in the Wake of Stengart and Quon” during Gibbons P.C.’s Fourth Annual E-Discovery Conference on October 28, 2010.

Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus

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Posted in E-Discovery

On November 2, 2010

Relevance. Scienter. Prejudice. These three themes permeated a roundtable discussion entitled “Legal Hold Best Practices after Victor Stanley II, Pension Committee and Rimkus” during Gibbons Fourth Annual E-Discovery Conference on October 28, 2010, at Gibbons headquarters in Newark, New Jersey. A distinguished panel discussed legal hold best practices and lessons learned from recent decisions, including proactive measures and creative strategies for companies of all sizes to meet their e-discovery obligations. E-discovery preservation obligations have been a critical issue in employment litigation since Judge Scheindlin’s groundbreaking opinion in Zubulake v. UBS Warburg (in which the defendant/employer was sanctioned for failing to preserve documents in a sex discrimination case brought under Title VII).

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