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Legal Updates

Spoiler Alert! Another Legal Update on Data Preservation and Spoliation Implications

There appears to be a recent theme on this blog regarding data preservation and spoliation, and—not to spoil anyone’s appetite for this important topic—we are back with another one. And for good reason given the heightened risk of spoliation sanctions in today’s increasingly data-driven legal landscape. A recent order in Safelite Group, Inc. v. Lockridge is one of many that highlights the growing need to stay apprised of the various steps necessary to ensure compliance with essential data preservation requirements.

Ignorance might be bliss, but it is not a defense. This is especially true as it relates to one’s duty to comply with a litigation hold. To avoid potential Rule 37(e) sanctions, attorneys must be familiar with the preservation steps needed for basic sources of ESI and take care to ensure that their clients understand the same.
Legal Updates

Blurred Lines: Personal Devices, Proportionality, and Piercing the Work Product Privilege

In a fairly short opinion and order, the district court in Weston v. DocuSign, Inc. analyzed whether the parties were entitled to the production of text messages from former employees’ personal devices and potential piercing of the attorney work product privilege. The issues in this opinion are not necessarily novel but illustrate significant concerns for litigants.

In a world where the lines between our personal and private lives are increasingly blurry, the possibility of discovery on personal devices should come as a surprise to no one, and it is, of course, a litigation disaster to have the work product privilege protections pierced and to be ordered to turn over attorney notes, witness lists, and witness communications on the very subject of the litigation. So, what is the take-away for litigation counsel with respect to protecting the work product privilege?
Legal Updates

Planting the Seeds of Accountability for Spoliation Sanctions

When seeking sanctions for spoliated evidence, the nature of the evidence and your jurisdiction can play a pivotal role. Are you in state or federal court? Is the missing evidence electronically stored information or not? The same facts and circumstances could yield vastly different outcomes depending on the answers to those questions. It is important to recognize up front, at the start of your case, how your jurisdiction may impact discovery issues that could arise later down the road so that you can plan accordingly. In the case in this post, while the court did not ultimately affirm the imposition of an adverse jury instruction for spoliation of evidence, it did find a duty to preserve existed based not only on the parties’ contract, but on evidence the party in question had promised to preserve such evidence. By contrast, the insurers failed to demonstrate that same party owed them a duty to preserve.