e-Lawyering ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated May 19, 2023 by Daniel Miller To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding ... Read more » Cell Phone Data Cellular Phone Email Emails ESI Protocol Manual Review Metadata Spoliation Text Message Text Messaging and Other Real-Time Electronic Communications Trends & Emerging Issues
e-Lawyering New Opinion by Washington Court of Appeals Identifies Limits on When Sanctions for Spoliation May Be Applied Under Washington Case Law April 7, 2023 by Daniel Miller Courts throughout the United States have different perspectives on the actions that constitute spoliation of evidence and the situations in which these actions should be sanctioned. Furthermore, as courts examine and re-examine these concepts over time... Read more » Data Preservation Spoliation Trends & Emerging Issues
e-Lawyering iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions September 23, 2022 by Daniel Miller On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after... Read more » Data Preservation Duty to Preserve Failure to Preserve FRCP 37(e) Preservation (effective Dec. 1, 2015) Spoliation Trends & Emerging Issues
e-Lawyering Europe v. Equinox Holdings, Inc. (S.D.N.Y. 2022) March 21, 2022 by Robertson Noreus Key Insight: Plaintiff brought a motion for sanctions alleging defendants failed to preserve a key piece of evidence (the September 2019 managers’ schedule from the month when she was terminated) in her employment discrimination suit. The court c... Read more » Adverse Inference CASE SUMMARIES Failure to Preserve FRCP 37(e) ESI Spoliation Sanctions (effective Dec. 1 Motion for Sanctions Sanctions Spoliation
e-Lawyering Emerson Creek Pottery v. Emerson Creek Events (W.D. Va. 2022) February 18, 2022 by Robertson Noreus Key Insight: Plaintiff moved for spoliation sanctions against defendants relying on (1) an inadvertently disclosed email between defendant and his counsel discussing the preservation of emails, and (2) defendants did not produce a “mirror image&#... Read more » Adverse Inference CASE SUMMARIES FRCP 37(e) ESI Spoliation Sanctions (effective Dec. 1 Motion for Sanctions Spoliation
e-Lawyering America West Bank Members v. State of Utah (D. Utah 2021) November 10, 2021 by Robertson Noreus Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have... Read more » CASE SUMMARIES Data Preservation Discovery on Discovery FRCP 26(b)(1) Scope in General (effective Dec. 1, 2015) FRCP 37(e) Preservation (effective Dec. 1, 2015) Lost Documents Motion to Compel Policy on Routine Records Management and Retention Proportionality Relevance Spoliation