Legal Holds

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. 

The emergence of ephemeral messaging applications to communicate with friends, family, and coworkers quickly, securely, and effortlessly has boomed over the past decade. In that time, users of ephemeral messaging apps have risen significantly, from millions to billions of active users! Ephemeral messaging is an integral and evolving part of both individual and company communications with advantages and challenges impacting companies and the legal industry. Companies must consider the ramifications of their employees' use of ephemeral messaging and adopt policies and procedures to best protect themselves and comply with requirements relating to litigation and regulation. Courts have already begun addressing the failure to preserve relevant ephemeral messages and have been issuing sanctions in a myriad of legal challenges. Ephemeral messaging is here to stay, and companies, courts, and attorneys must understand and adapt to evolve with this emerging technology.

Now that almost two years have passed since the new Federal Rules of Civil Procedure became law, we have the opportunity to assess the effectiveness of our current strategies and whether we are taking full advantage of the new rules related to discovery.