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Archive for August 31st, 2007

Case Blurb: Alcoa, Inc.; Issuance of Adverse Inference Instruction often ends the litigation

Posted by rjbiii on August 31, 2007

The court in Zubulake pointed out that the giving of an adverse inference instruction often terminates the litigation in that it is “too difficult a hurdle” for the spoliating party to overcome. The court therefore concluded that the adverse inference instruction is an “extreme” sanction that should “not be given lightly.” Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Morris v. Union Pacific R. R., 373 F.3d 896, 900 (8th Cir.2004)).

Posted in 5th Circuit, Adverse Inference, Case Blurbs, M.D. La., Magistrate Judge Christine Noland, Sanctions | Leave a Comment »

Case Blurb: Phoenix Four; Imposition of adverse inference discretionary

Posted by rjbiii on August 31, 2007

Even if the elements for imposition of an adverse inference instruction have been established, the court has the discretion to impose lighter sanctions. See Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006).

Posted in 2nd Circuit, Adverse Inference, Case Blurbs, Discovery, S.D.N.Y, Sanctions | Leave a Comment »

Case Blurb: Alcoa, Inc.; Effect of an adverse inference instruction

Posted by rjbiii on August 31, 2007

Imposition of an adverse inference instruction has been recognized as a powerful tool in a jury trial since, when imposed, it basically brands one party as a bad actor, guilty of destroying evidence that it should have retained for use by the jury. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Morris v. Union Pacific R. R., 373 F.3d 896, 900 (8th Cir.2004)).

Posted in 5th Circuit, Adverse Inference, Case Blurbs, M.D. La., Magistrate Judge Christine Noland, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Alcoa, Inc; Purposes of Monetary Sanctions

Posted by rjbiii on August 31, 2007

Like an adverse inference, an award of costs serves both punitive and remedial purposes: It deters spoliation and compensates the opposing party for the additional costs incurred. Such compensable costs may arise either from the discovery necessary to identify alternative sources of information, or from the investigation and litigation of the document destructions itself. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing U.S. Phillip Morris USA, Inc., 327 F.Supp. 2d 21 (D.D.C. 2004)).

Posted in 5th Circuit, Case Blurbs, Duty to Produce, M.D. La., Magistrate Judge Christine Noland, Monetary Damages, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Zubulake IV; Monetary sanctions for late production of evidence

Posted by rjbiii on August 31, 2007

When the misconduct is late production of evidence, compensable costs may also arise from the need to re-dispose witnesses. Zubulake IV, 220 F.R.D. at 222.

Posted in 2nd Circuit, Case Blurbs, Duty to Produce, Judge Shira A. Scheindlin, Monetary Damages, S.D.N.Y, Sanctions | Leave a Comment »

Case Blurb: Phoenix Four; Monetary sanctions imposed where other relief is denied

Posted by rjbiii on August 31, 2007

Even when a court denies other requested relief, it may still impose monetary sanctions for spoliation and other discovery misconduct. Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006) (citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991)).

Costs for which the party that requests sanctions may be compensated arise “either from the discovery necessary to identify alternative sources of information…or from the investigation and litigation of the document destruction itself. Id.

Posted in 2nd Circuit, Case Blurbs, Discovery, S.D.N.Y, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Phoenix Four; Purposes of sanctions

Posted by rjbiii on August 31, 2007

Sanctions imposed by the court should serve to: deter parties from engaging in spoliation, place the risk of an erroneous judgment on the party who wrongfully created the risk, and restore the prejudiced party to the position it would have been in had the misconduct not occurred. Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006).

Posted in 2nd Circuit, Case Blurbs, S.D.N.Y, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Phoenix Four; Court has broad discretion to address misconduct during discovery

Posted by rjbiii on August 31, 2007

Where the alleged discovery misconduct consists of the non-production of evidence, a district court has broad discretion to fashion appropriate sanctions on a case-by-case basis. Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y 2006).

Posted in 2nd Circuit, Case Blurbs, Discovery, Duty to Produce, Inherent Power of Fed. Courts, S.D.N.Y, Sanctions | Leave a Comment »

Case Blurb; Quintus Corp.; Appropriateness of Default Judgment as Sanction

Posted by rjbiii on August 31, 2007

Judgment is [an] appropriate sanction where destruction of documents deprives adversary of critical evidence. In re Quintus Corp. v. Avaya, Inc., 353 B.R. 77 (Bkrtcy. D. Del. 2006) (citing Shepherd v. Am. Broad. Cos., F.3d 1469, 1479 (D.C. Cir. 1995)).

Posted in 3d Circuit, Bankruptcy Judge Mary A. Walrath, Case Blurbs, D. Del., Default Judgment, Duty to Preserve, Sanctions, Spoliation | Leave a Comment »

Employees risk loss of privacy and embarrassment for convenience

Posted by rjbiii on August 31, 2007

Law.com has posted an article written for the New York Law Journal warning that private emails may turn public, because employees use business computers for personal use, and personal devices to work on business-related projects.

As these results indicate, courts and attorneys are likely to face an increasing number of requests for access not only to an employee’s business e-mail, but also to any business-related e-mail that may be found in the employee’s personal e-mail or stored on the employee’s home computer. This reality can raise privacy concerns and questions about whether a subpoena or document demand to a company should be read to reach the personal e-mail accounts of the company’s employees.

Anyone who has been in litigation support long has seen examples where the expansion of custodians extended to private data sources (such as yahoo email accounts and personal desktops sitting at employees’ houses) has occurred because employees use those personal sources to conduct business activities. Conversely, private communications have been subject to review because those communications were sent from company sources.

Here at Post Process, we see the trend increasing, even with the growing awareness of the incidents by employees and companies. For one thing, it is just too convenient to, say, pay a bill online, rather than leave the workplace and physically go to the bank. Such uses can save both the employee and the company time. That said, privacy is often sacrificed by convenience.

Posted in email, H. Christopher Boehning, Privacy, Scope of Discovery, Trends | 2 Comments »

 
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