Post Process

Everything to do with E-discovery & ESI

Archive for August 29th, 2007

Case Blurb: Alcoa; Adverse Inference, exclusion are drastic measures

Posted by rjbiii on August 29, 2007

In exercising its discretion, a court may exclude the spoiled evidence or allow the jury to infer that the party spoiled the evidence b/c the evidence was unfavorable to the party’s case. However, these sanctions are considered drastic, and courts generally try to avoid imposing them when lesser sanctions are available. 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, Case Blurbs, Exclusion of Evidence, M.D. La., Magistrate Judge Christine Noland, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Alcoa; Sanctions appropriate for mere negligent destruction of evidence

Posted by rjbiii on August 29, 2007

Though the nature of the sanction depends in part on the state of mind of the destroyer, some remedy may be appropriate even where the destruction is merely negligent. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Chan v. Triple 8 Palace, Inc., 2005 WL 1925579 (S.D.N.Y. 2005)).

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

Case Blurb: Alcoa; Monetary damages awarded for destruction of evidence

Posted by rjbiii on August 29, 2007

Where a party to litigation has destroyed relevant evidence, monetary sanctions have been awarded to cover the opposing party’s costs incurred in investigating the discovery abuses and related motions. Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Housing Rights Center v. Sterling, 2005 WL 3320739 (C.D. Cal. 2005)).

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

Case Blurb: Alcoa; Factors to help determine severity of sanctions for spoliation

Posted by rjbiii on August 29, 2007

The seriousness of the sanctions imposed by a court as a result of spoliation of evidence depends on (Consolidated Aluminum Corp. v. Alcoa, Inc., 2006 WL 2583308 (M.D.La) (citing Menges v. Cliffs Drilling Co., 2000 WL 765082 *6 (E.D.La.2000))):

  • The degree of fault of the party who altered or destroyed the evidence;
  • The degree of prejudice suffered by the opposing party; and
  • Whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.

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

Case Blurb: Zubulake; Determination of proper sanction for spoliation discretionary

Posted by rjbiii on August 29, 2007

The determination of a proper sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is determined on a case by case basis. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

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

Case Blurb: Easton Sports; Test for Prejudice on altered or destroyed evidence

Posted by rjbiii on August 29, 2007

The test for prejudice is whether there is a reasonable possibility, based upon concrete evidence, that access to the destroyed or altered evidence, which is not otherwise obtainable, would produce evidence favorable to the objecting party. Easton Sports, Inc. v. Warrior Lacrosse, Inc., 2006 WL 2811261 (E.D. Mich. 2006) (citing Nationwide Mutual Fire Insurance Company v. Ford Motor Company, 174 F.3d 801, 804 (6th Cir. 1999)).

Posted in 6th Circuit, E.D. Mich., Magistrate Judge Donald A. Scheer, Spoliation | Leave a Comment »

Case Blurb: Zubulake; Adverse Inference discussed.

Posted by rjbiii on August 29, 2007

The spoliation of evidence “relevant to proof of an issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction.” Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

Posted in 2nd Circuit, Adverse Inference, Case Blurbs, Duty to Preserve, Judge Shira A. Scheindlin, S.D.N.Y, Spoliation | Leave a Comment »

Case Blurb: Ed Donnelly Ents., Inc.; Inherent authority to govern process given to courts w/o regard to FRCP

Posted by rjbiii on August 29, 2007

Fed. Courts possess inherent authority to sanction bad-faith conduct w/o regard to whether such conduct could be sanctioned under other applicable rules or statutes. O’Brien v. Ed Donnelly Ents., Inc., 2006 WL 2583327 (S.D. Ohio).

Determination of the correct sanction for discovery misconduct is left to the broad discretion of the trial court. Id. (citing Nat’l Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 642 (1976)).

Posted in 6th Circuit, Case Blurbs, Inherent Power of Fed. Courts, Magistrate Judge Norah McCann King, S.D. Ohio, Sanctions | Leave a Comment »

Case Blurb: King Lincoln Bronzeville Neighborhood Assn; Court’s authority to sanction

Posted by rjbiii on August 29, 2007

A trial court has the authority to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced. King Lincoln Bronzeville Neighborhood Ass’n v. Blackwell, 448 F.Supp.2d 876 (S.D. Ohio 2006) (citing United States v. Kitsap Physicians Service, 315 F.3d 995, 1001 (9th Cir. 2002)).

Posted in 6th Circuit, Case Blurbs, Inherent Power of Fed. Courts, S.D. Ohio, Sanctions | Leave a Comment »

Case Blurb: Zubulake; Sanctions for Destroying Evidence Explained

Posted by rjbiii on August 29, 2007

A party can only be sanctioned for destroying evidence that it had a duty to preserve, and such duty arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation. Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

However, a corp. upon recognizing the threat of litigation, need not preserve every shred of paper, every e-mail or electronic document, and every backup tape. Id.

Instead, the duty to preserve extends to any documents or tangible things made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Id.

The duty also extends to documents prepared for those individuals and to information that is relevant to the claims and defenses of any party, or which is relevant to the subject matter involved in the action. Id.

Thus, the duty to preserve extends to those employees likely to have relevant information, i.e. the “key players” in the litigation. Id.

Posted in 2nd Circuit, Case Blurbs, Document Retention, Duty to Preserve, Judge Shira A. Scheindlin, Key Players, Reasonable Anticipation of Litigation, S.D.N.Y, Spoliation | Leave a Comment »