Embedded Files
Avoid Sanctions
Avoiding sanctions during eDiscovery
Beware of using such software if there is a known possibility of litigation or even if you or your client should have expected it might happen. For instance, let us say a client who designed a tredmill hears that someone was injured because it sped up and knocked them off. No litigation has been engaged, yet. But the client then, anticipating there might be a law suit, decides to delete files related to the design discussion when such a glitch was talked about and uses this type of software to eradicate the files.
Software sometimes used to permanently erase data is available and has been used to get rid of ESI
https://www.wlf.org/2020/04/23/publishing/not-so-new-e-discovery-amendments-are-making-a-lasting-impression/
Rule 37(e) prevented an adverse inference charge in Man Zhang v. City of New York, even though defendant lost digital surveillance footage.10 Plaintiff failed to establish defendant’s intent to deprive plaintiff of the use of information. As a result, the court limited plaintiff’s relief to no more than additional measures under the Rule. The United States lost a surveillance video of a violent attack in Bistrian v. Levi.11 Although the court was disturbed by the loss of ESI under the circumstances, the evidence presented did not establish an intent to deprive.
In Karsch v. Blink Health Ltd.,12 a Southern District of New York court conducted a thorough analysis using Rule 37(e) in a commercial dispute. Plaintiff allowed employees to destroy a server containing relevant evidence. The court admonished plaintiff and his counsel for failing to take reasonable steps to preserve contents of the server but placed the burden on defendant to demonstrate plaintiff acted with the intent to deprive defendant of the information’s use in litigation. The court also required clear and convincing evidence. Ultimately, defendant could show no such intent and the court did not award sanctions under Rule 37(e)(2). The court did allow defendant to present evidence of spoliation to the jury under Rule 37(e)(1).13
In Cruz v. G-Star Inc., Rule 37(e) prevented an adverse inference charge, despite a magistrate judge’s recommendation that it should be given.14 Relying on Rule 37(e) the district court judge held that defense counsel’s failure to familiarize herself with her client’s document retention policies and technology (to properly preserve evidence) was a failure to take reasonable steps. Although the court deemed defendants’ failure negligent, the court held defendant possessed no intent to deprive plaintiff of the information’s use in litigation.
Hillary Clinton - email issue
https://abovethelaw.com/2015/03/what-the-hillary-clinton-e-mail-scandal-means-for-lawyers/
Page updated
Google Sites
Report abuse