Gibbons Law Alert

Gibbons Law Alert

Tagged: Self-Collection

“Is That All There Is?” The Western District of Kentucky Gives a Fresh Look to the Standard Supporting ESI Search Sufficiency Challenges

by

Posted in General Litigation

On September 28, 2021

A long-established precept of ESI production challenges is, if you’re complaining that they “must have more than that,” you’d best be able to support that position if your goal is to force your adversary to redo its search. Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., et al., No. 3:19-CV-00014-GNS-LLK (W.D. Ky. Apr. 20, 2021) brings this point home in full force. In that decision, which involved a Lanham Act trade dress dispute, United States Magistrate Judge Lanny King addressed plaintiff Maker’s Mark’s complaint that defendant Spalding’s ESI production was so paltry and otherwise deficient that Spalding should be compelled to implement a new ESI search. Ultimately, the court was having none of it. This decision is a reminder of the importance of communication between counsel before and after the Rule 26 conference, as well as the need to establish a compelling factual record of discovery deficiencies before seeking judicial relief.

“It Wasn’t My Fault”: Court Rejects Attempts by Client and Attorney to Duck Responsibility and Sanctions Both Jointly

by

Posted in E-Discovery: Legal Decisions and Court Rules

On April 6, 2021

This blog has previously discussed the importance of cooperation among parties in a litigation to effectuate a comprehensive discovery framework; however, a recent decision from the District Court for the Northern District of California exemplifies the importance of joint responsibility and collaboration between attorneys and their clients when dealing with e-discovery matters, including preservation, collection, and production of electronically stored information (ESI). In a case that ultimately settled and involved both foreign and domestic parties, the court granted a motion for monetary sanctions pursuant to its inherent authority and Rule 37, after finding that the plaintiff’s discovery misconduct “not only forced [defendant] to incur additional attorneys’ fees but … also forced the court to expend considerable resources beyond what was necessary.” Because both the plaintiff and its former counsel “failed in their responsibilities,” the court imposed sanctions jointly and severally against them. In Optrics Inc. v. Barracuda Networks Inc., the plaintiff, a Canadian engineering firm, filed suit in August 2017 against the defendant, an American company, “bringing trademark, contract, and other claims stemming from allegedly unfair and deceptive business practices by [defendant] during the parties’ thirteen-year business relationship.” Beginning in June 2019, discovery disputes and “discovery violations” by the plaintiff plagued the litigation. In February 2020, “with discovery still mired in disputes,” the parties stipulated...

Do Not Treat Rule 26(g) Certifications as a Mere Formality: Southern District of Florida Cautions Against Client ‘Self-Collection’ of ESI Without Adequate Attorney Oversight

by

Posted in E-Discovery: Legal Decisions and Court Rules / Technology Developments and Issues

On August 20, 2020

In a recent decision reprimanding defense counsel’s lack of oversight of a client’s collection of data during discovery, the District Court for the Southern District of Florida issued a cautionary opinion that should serve as yet another reminder to counsel of the perils associated with allowing a client to self-collect ESI. Similar to a recent decision we addressed from the District Court of the Northern District of California, Equal Employment Opportunity Commission v. M1 5100 Corp., d/b/a Jumbo Supermarket, Inc. is a strong reminder that Federal Rule of Civil Procedure 26 should serve as a guide for the action and oversight required of counsel in the search, collection, and production of documents in response to discovery demands. In this age discrimination case, the District Court addressed plaintiff’s motion to compel. Plaintiff sought more specific discovery responses to two requests, attorney’s fees and costs in addition to the “opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant ‘self-collected’ responsive documents and information to the discovery requests without the oversight of counsel.” Cautioning against the “perils of self-collection of ESI by a party or interested person,” the District Court reminded counsel of its obligation to “have knowledge of, supervise, or counsel the client’s discovery search, collection and production” pursuant to Rule 26(g)(1). The District...

“Trust me, I know what I’m doing!” – Court Outlines Perils of Custodian Self-Collection and Inadequate Keyword Searches

by

Posted in E-Discovery: Legal Decisions and Court Rules

On September 21, 2012

In a recent ruling, United States Southern District Judge and e-discovery authority Shira Scheindlin, of Zubulake and Pension Committee fame, held that various government agencies had failed to adequately design searches for responsive electronically-stored information. While the case, National Day Laborer Org. Network et al. v. U.S. Immigration and Customs Enforcement Agency, et al., 2012 U.S. Dist. LEXIS 97863 (S.D.N.Y. July 13, 2012), deals largely with searches in the context of the Freedom of Information Act (“FOIA”), Judge Scheindlin noted “much of the logic behind . . . e-discovery searches is instructive in the FOIA search context because it educates litigants and the courts about the types of searches that are or are not likely to uncover all responsive documents.”

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

by

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.”

Gibbons to Host 5th Annual E-Discovery Conference – November 3, 2011

by

Posted in Technology Developments and Issues

On October 13, 2011

The Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference for corporate counsel and information technology professionals on November 3, 2011, in the firm’s Newark, NJ office. Devoted to the latest developments in electronic discovery and corporate information management, this program will include speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judge John Hughes, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who will present and moderate panels are Task Force Chair, Mark S. Sidoti and Task Force members, Paul E. Asfendis, Melissa DeHonney, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan.

New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures

by

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

On September 28, 2011

Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage. The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable — while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.

E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

by

Posted in E-Discovery: Legal Decisions and Court Rules

On September 27, 2011

Even after a particular case has concluded, the risk of sanctions arising from e-discovery violations persists. Green v. Blitz U.S.A. was one of many products liability suits alleging injuries resulting from the defendant’s failure to equip its gas can with a “flame arrester.” Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

Connect:

About Gibbons

With 200 attorneys, Gibbons is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. More…

Subscribe

Archived Blog Posts

Categories