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Archive for the ‘Case Blurbs’ Category

Case Blurb: Lebowitz; Authentication of ESI Discussed

Posted by rjbiii on May 17, 2010

The Defendant questioned the authenticity of email transcripts, “instant messages,” and “chats” due to the incompleteness and integrity of the evidence. “The requirement of authenticity . . . as a condition precedent of admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). Though K.S. did not testify at the hearing, Officer Suber testified that the communications were provided to her by K.S. FN2. Also, other evidence, including recorded telephone conversations, corroborated the communications. There are obvious omissions in some of the communications. However, the Court finds that those omissions do not support excluding the communications. The omissions go to the weight rather than the admissibility of the evidence. Based upon the evidence presented at the hearing, the Court finds that Defendant has not demonstrated that the evidence should be excluded at this time. Defendant’s Motion on the Authenticity of Purported Electronic Communications is DENIED.

FN2: For purposes of the hearing, Officer Suber’s testimony was sufficient. However, before the communications will be admissible at trial, the testimony of K.S. or someone with actual knowledge about the communications will be required.

United States v. Lebowitz, 2010 U.S. Dist. LEXIS 7026 at *4-5 (N.D. Ga. Jan. 27, 2010)

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Posted in 11th Circuit, Authentication, Case Blurbs, Chat Room Content, email, FRE 901(a), Instant Messaging, Judge Richard W. Story, N.D. Ga., Uncategorized | Leave a Comment »

Case Blurb: Lafarge North Am.; Measures for Protecting ESI

Posted by rjbiii on April 5, 2010

[The expert witness] sets out and expounds on five “generally accepted measures” for protecting electronic information:
(1) establishing and communicating protection polices;
(2) need-to-know distribution of confidential information;
(3) marking information as “confidential” or “proprietary”;
(4) maintaining confidentiality agreements; and
(5) controlling access to information with physical or electronic systems.

The measures [the expert] identifies appear reasonable.

United States Gypsum Co. v. Lafarge North Am. Inc., 670 F. Supp. 2d 768, 773 (N.D. Ill. 2009)(internal citations removed).
See Case Summary here.

Posted in 7th Circuit, Case Blurbs, Information Security, Judge Rebecca R. Pallmeyer | Leave a Comment »

Case Blurb: Cammarata; The difficulty of proving relevance and prejudice of destroyed documents

Posted by rjbiii on March 29, 2010

It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. The “relevance” and “prejudice” factors of the adverse inference analysis are often broken down into three subparts:

(1) whether the evidence is relevant to the lawsuit;
(2) whether the evidence would have supported the inference sought; and
(3) whether the nondestroying party has suffered prejudice from the destruction of the evidence.

Pension Committee recognized the difficulty and potential for unfairness in requiring an innocent party seeking discovery to show that information lost through spoliation is relevant and prejudicial. Those concerns are acute when the party seeking discovery cannot replace or obtain extrinsic evidence of the content of deleted information. But in many cases–including the present case–there are sources from which at least some of the allegedly spoliated evidence can be obtained. And in many cases–including the present case–the party seeking discovery can also obtain extrinsic evidence of the content of at least some of the deleted information from other documents, deposition testimony, or circumstantial evidence.

Courts recognize that a showing that the lost information is relevant and prejudicial is an important check on spoliation allegations and sanctions motions. Courts have held that speculative or generalized assertions that the missing evidence would have been favorable to the party seeking sanctions are insufficient. By contrast, when the evidence in the case as a whole would allow a reasonable fact finder to conclude that the missing evidence would have helped the requesting party support its claims or defenses, that may be a sufficient showing of both relevance and prejudice to make an adverse inference instruction appropriate.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, 30-31 (S.D. Tex. Feb. 19, 2010) (referring to Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 4546, 2010 WL 184312, at *3 (S.D.N.Y. Jan. 15, 2010))

See case Summary for Pension Committee here.

Posted in 5th Circuit, Adverse Inference, Case Blurbs, Judge Lee H. Rosenthal, S.D. Tex., Sanctions, Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Cammarata; Bad Faith a Requirement for the Imposition of Severe sanctions in the 5th Cir

Posted by rjbiii on March 29, 2010

As a general rule, in this circuit, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed unless there is evidence of “bad faith.”

Other circuits have also held negligence insufficient for an adverse inference instruction. The Eleventh Circuit has held that bad faith is required for an adverse inference instruction. The Seventh, Eighth, Tenth, and D.C. Circuits also appear to require bad faith. The First, Fourth, and Ninth Circuits hold that bad faith is not essential to imposing severe sanctions if there is severe prejudice, although the cases often emphasize the presence of bad faith. In the Third Circuit, the courts balance the degree of fault and prejudice.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, at *23-24 (S.D. Tex. Feb. 19, 2010)(internal citations removed).

Posted in 5th Circuit, Adverse Inference, Bad Faith, Case Blurbs, Judge Lee H. Rosenthal, S.D. Tex., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Cammarata; On Determining Appropriate Sanctions for Spoliation

Posted by rjbiii on March 29, 2010

Determining whether sanctions are warranted and, if so, what they should include, requires a court to consider both the spoliating party’s culpability and the level of prejudice to the party seeking discovery. Culpability can range along a continuum from destruction intended to make evidence unavailable in litigation to inadvertent loss of information for reasons unrelated to the litigation. Prejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof. A court’s response to the loss of evidence depends on both the degree of culpability and the extent of prejudice. Even if there is intentional destruction of potentially relevant evidence, if there is no prejudice to the opposing party, that influences the sanctions consequence. And even if there is an inadvertent loss of evidence but severe prejudice to the opposing party, that too will influence the appropriate response, recognizing that sanctions (as opposed to other remedial steps) require some degree of culpability.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, at *21-22 (S.D. Tex. Feb. 19, 2010)

Posted in 5th Circuit, Case Blurbs, Judge Lee H. Rosenthal, S.D. Tex., Sanctions, Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Cammarata; Application of General Rules to Spoliation Allegations

Posted by rjbiii on March 29, 2010

These general rules (on spoliation and sanctions) are not controversial. But applying them to determine when a duty to preserve arises in a particular case and the extent of that duty requires careful analysis of the specific facts and circumstances. It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done–or not done–was proportional to that case and consistent with clearly established applicable standards. As Judge Scheindlin pointed out in Pension Committee, that analysis depends heavily on the facts and circumstances of each case and cannot be reduced to a generalized checklist of what is acceptable or unacceptable.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, at *20-21 (S.D. Tex. Feb. 19, 2010)(referring to Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, No. 05 Civ. 9016, 2010 U.S. Dist. LEXIS 4546, 2010 WL 184312, at *3 (S.D.N.Y. Jan. 15, 2010))

See case Summary for Pension Committee here.

Posted in 5th Circuit, Case Blurbs, Judge Lee H. Rosenthal, S.D. Tex., Sanctions, Spoliation | Tagged: , | Leave a Comment »

Case Blurb: Cammarata; Duty to Preserve

Posted by rjbiii on March 29, 2010

Generally, the duty to preserve arises when a party “‘has notice that the evidence is relevant to litigation or . . . should have known that the evidence may be relevant to future litigation.'” Generally, the duty to preserve extends to documents or tangible things (defined by Federal Rule of Civil Procedure 34) by or to individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.”

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, at *18-19 (S.D. Tex. Feb. 19, 2010)

Posted in 5th Circuit, Case Blurbs, Duty to Preserve, FRCP 34, Judge Lee H. Rosenthal, S.D. Tex. | Leave a Comment »

Case Blurb: Cammarata; Definition of Spoliation

Posted by rjbiii on March 29, 2010

Spoliation is the destruction or the significant and meaningful alteration of evidence.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573 at *18 (S.D. Tex. Feb. 19, 2010)

Posted in 5th Circuit, Case Blurbs, Judge Lee H. Rosenthal, S.D. Tex., Spoliation | Leave a Comment »

Case Blurb: Cammarata; Court’s Authority to Impose Sanctions for Spoliation

Posted by rjbiii on March 29, 2010

Allegations of spoliation, including the destruction of evidence in pending or reasonably foreseeable litigation, are addressed in federal courts through the inherent power to regulate the litigation process if the conduct occurs before a case is filed or if, for another reason, there is no statute or rule that adequately addresses the conduct. If an applicable statute or rule can adequately sanction the conduct, that statute or rule should ordinarily be applied, with its attendant limits, rather than a more flexible or expansive “inherent power.”

When inherent power does apply, it is “interpreted narrowly, and its reach is limited by its ultimate source–the court’s need to orderly and expeditiously perform its duties.” In [Supreme Court case] Chambers, the inherent power was linked to the bad-faith conduct that affected the litigation. See 501 U.S. at 49. If inherent power, rather than a specific rule or statute, provides the source of the sanctioning authority, under Chambers, it may be limited to a degree of culpability greater than negligence.

See case summary here.

Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573, 14-15 (S.D. Tex. Feb. 19, 2010) (internal citations removed).

Posted in 5th Circuit, Case Blurbs, Inherent Power of Fed. Courts, Judge Lee H. Rosenthal, S.D. Tex., Sanctions, Spoliation | Leave a Comment »

Case Blurb: Pension Comm. of the Univ. of Montreal Pension Plan; New Burden Shifting Test Articulated

Posted by rjbiii on March 1, 2010

To ensure that no party’s task is too onerous or too lenient, I am employing the following burden shifting test: When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden then shifts to the spoliating party to rebut that presumption. The spoliating party can do so, for example, by demonstrating that the innocent party had access to the evidence alleged to have been destroyed or that the evidence would not support the innocent party’s claims or defenses. If the spoliating party demonstrates to a court’s satisfaction that there could not have been any prejudice to the innocent party, then no jury instruction will be warranted, although a lesser sanction might still be required.

Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, LLC, 2010 U.S. Dist. LEXIS 4546, at *23-24 (S.D.N.Y. Jan. 15, 2010)

The case summary is here.

Posted in 2nd Circuit, Burden of Proof, Case Blurbs, Judge Shira A. Scheindlin, Relevance, Spoliation | Leave a Comment »