Legal Updates

The preservation of, or failure to preserve, ESI in a litigation context provides ample opportunities for counsel to stumble and is a fertile area of case law. In this blog we will look at Hollis v. CEVA Logistics U.S., Inc., No. 19 CV 50135, (N.D. Ill. May 19, 2022), an interesting little case in which the Court found that a curative jury instruction was warranted in a matter where the defendant CEVA failed to preserve video evidence of an altercation between the plaintiff Hollis and another employee which resulted in Hollis’s termination. This case is instructive in that it discusses in some detail the  “five threshold requirements” (Hollis, at 2) to impose remedies for failure to preserve ESI under Fed.R.Civ.P. 37(e) as well as the issues of intent to deprive plaintiff of the evidence and of prejudice to the plaintiff. The case is particularly interesting, however, in that it illustrates the potential difficulties in recognizing when a duty to preserve arises, particularly with respect to short-lived, ephemeral evidence that is destroyed or overwritten well before formal litigation commences.

The workplace was permanently altered in March 2020, when an unprecedented global pandemic uprooted the traditional ways that companies thought and operated. What was initially expected to be a momentary pause in normal operations became a multi-year endeavor to adapt to and overcome ever-changing circumstances. Successful workplaces evolved to meet these circumstances by innovating, collaborating, and creating a new, better environment for its clients and its employees, ushering in the future of the hybrid workplace. The hybrid workplace is being adopted in many professions as a direct result of the pandemic, creating the ability to work just as well remotely as in-person, and providing employees and clients with even more benefits.

While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages, and collections from mobile devices are oftentimes overlooked. A narrowly tailored motion to compel forensic exam can be a valuable discovery tool to analyze the data on a party’s mobile phone. This blog analyzes the factors that led a court in the Northern District of Illinois to order the forensic imaging and collection of a party's mobile phone.

In Part Two of this blog series, I discuss lessons learned and provide best practices for complying with discovery obligations. In Part One of this blog series, we analyzed Burris v. JP Morgan Chase & Co., et al., a case in which the Court dismissed Plaintiff's complaint with prejudice because of Plaintiff’s “extensive misconduct and deception, without any obvious contrition or awareness of the wrongfulness of his conduct” which posed a serious risk any further proceedings would be “plagued” by a similar pattern of discovery abuse and deception that would make “it impossible for the district court to conduct a trial with any reasonable assurance that the truth would be available." As litigants and legal practitioners, we can learn from the Court's decision in Burris and ensure we don't make the same mistakes.

Document management systems allow users to send a link to a document directly from the system, ensuring that all recipients receive the same, most up to date version, and, often most importantly when it comes to efficiency, ensuring that only one person is working in a draft document at a time. When we email links to these documents, the document itself is not attached to the email; rather, a hyperlink to the document where it is housed on the document management system is attached. As an e-discovery professional, my next thought is….how do we handle these links in discovery? At least one court has grappled with this question and its decision sheds new light on how we can handle hyperlinked attachments in our own cases.

We’re all familiar with the importance of avoiding the inadvertent disclosure of attorney-client communications, work product or sensitive, proprietary or confidential business information. However, our obligations don’t end there. In addition to protecting this information, we also need to consider how to handle personal identifying information (“PII”). With extremely large amounts of data being at play in most litigation matters, it is becoming more and more important to have a solid game plan with safeguards and protections in place. Accidentally disclosing PII can lead to a chaotic discovery process and could lead to expensive monetary sanctions.