Louisiana Supreme Court Rejects Independent Tort for Negligent Spoliation

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“The plaintiff contends the allegations contained in his petition are not limited to the singular cause of action of negligent spoliation of evidence and that the sufficiency of the petition should not be measured solely by the existence (or lack thereof) of that specific tort. Rather, he avers the petition sufficiently describes negligent conduct that is recoverable under claims ranging …

District Court in Colorado Taxes E-Discovery Expenses as Costs to the Prevailing Party

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“Courts have recognized that 28 U.S.C. §1920(4) includes e-discovery related costs. Nero v. Am. Family Mut. Ins. Co., No. 11–02717, 2013 WL 5323262 (D.Colo. Sept. 23, 2013) (Defendant ‘is entitled to recover as taxable costs the amount spent on loading data into an electronic database and converting files to TIFF or PDF formats’); Country Vintner of N. Carolina, LLC v. …

District Judge Presiding over the Actos MDL Provides an Excellent Overview of the Current State of the Law, while Sanctioning Defendant for Spoliation

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Judge Doherty, in the Western District of Louisiana, characterized the current state of the law (and technology) as follows: “The common law spoliation doctrine, its nuances and application—along with the duties it imposes on both litigants and prospective litigants, and the ramifications for failing to comply with its requirements—is in a state of development and flux throughout the nation, primarily …

U.S. District Court for the Northern District of California Discusses Timing and Effect of Litigation Holds in Suit between Technology Industry Giants.

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Apple, the owner of patents for smartphone technology, brought a patent infringement action against Samsung. The Court, in a comprehensive discussion of preservation obligations, found that the duty to preserve evidence may attach prior to the filing of suit, when the party first knows or reasonably should know of actual or pending litigation – even where the parties have a history …

Magistrate Judge in the Southern District of New York Issues First Order Approving the Use of Predictive Coding Technology in Discovery.

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Five female employees brought action against their employer alleging gender discrimination.  The presiding magistrate judge, nothing that, to his knowledge, no reported case had addressed the use of computer-assisted coding (i.e., “tools (different vendors use different names) that use sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e.,training by) a human reviewer”).  The parties agreed …

United States Magistrate Judge in the District of Utah Rules that Evidence May Be Discarded as a Result of Good Faith Business Procedures.

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“BYU takes issue with Pfizer’s records’ management practices and specifically attacks its record keeping facility, the PRSC, arguing that Pfizer has used it to spoliate or hide documents. BYU, however, has failed to show that Pfizer’s record management practices rise to a level more than mere negligence. Moreover, according to Pfizer, BYU has declined opportunities to search the PRSC facility. …

Amended Federal Rule of Evidence 502 Expands Non-Waiver due to Inadvertent Disclosure related to any Federal Officer and/or Federal Proceedings.

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“The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection: (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or …

Magistrate Judge in the Western District of Tennessee outlines Appropriate Steps to Preserve E-Data and/or otherwise effectuate “Litigation Hold” upon Receipt of Preservation Letter or other Notice of Anticipated or Pending Litigation.

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According to the professional opinion of plaintiff’s technical expert, reasonable steps to preserve evidence would have entailed sending the Preservation Letter to all Lilly employees, suspending the routine destruction of such evidence, and “taking steps to preserve active data stored or found on servers, backup tapes, or other media.”  The next step “is collection and review.”  In this case, upon …

ABA Issues Opinion Regarding the Duty to Protect the Confidentiality of E-Mail Communications with One’s Client.

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A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. Clients may not be afforded a “reasonable expectation …

ABA Issues Opinion that No Duty is Owed under Rule 4.4(b) when an Employer’s Lawyer Receives Copies of an Employee’s E-Mail Communications with the Employee’s Counsel on the Employer’s Computer System.

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When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. (Rule 4.4(b) does not expressly address this …