Case Law Alert: Welcome to the “Inner Circle of Judicial Hell”
E-Discovery sanctions always draw attention, but in DR Distribs., LLC v. 21 Century Smoking, Inc., the e-discovery mistakes were so profound, and compounded over so much time, that the presiding judge issued seven-figure sanctions against both the defendant and its former counsel. Overview Beginning a decade ago in 2012, this case stems from a trademark infringement suit between two electronic cigarette companies. Plaintiff, who held a trademark for the term “21st Century Smoke,” accused the defendant “21 Century Smoking” of violations of the Lanham Act. At the time of the sanctions... Read More
One of the key themes of successful e-discovery that federal judges have emphasized for years is the importance of preparation and precision both in crafting discovery requests and in objections. The revised Federal Rules of Civil Procedure make it quite clear that you must prepare requests with "reasonable particularity." Put more simply, you can't fake it. You have to know your stuff. What are you asking for? What are the reasons for your objection? Fortunately, early case assessment technology can help you get a look at the information you need before you even have... 
As more and more organizations store data, the question asked in the alert’s title will continue to arise in cases again and again. In Linhares v. Woods Hole, Martha’s Vineyard, the court ruled that if a party has the practical ability to produce the requested documents, then they must do so. Overview: In this personal injury “slip and fall” case, the plaintiff motioned to compel the defendants to produce documents that were possessed by a third-party. During e-discovery, the plaintiff wanted to see the history of repairs done to the area in... 
The duty to preserve potentially relevant data extends to when “litigation is reasonably foreseeable.” This broad standard, in today’s big data world, can make it complicated for businesses to clearly communicate when litigation is likely and burdensome to implement processes to find and preserve that data, as the case law ruling in EBIN New York, Inc. v. SIC Enterprise, Inc. demonstrates. Overview The defendants moved for spoliation sanctions against the plaintiff, alleging failure to preserve relevant data from sources including WeChat and KakaoTalk mobile messages. The plaintiff filed suit in this trade... 
Both sides must agree to entering into a TAR protocol. In In re Allergan Biocell Textured Breast Implant Products Liability Litigation (D.N.J. Oct. 25, 2022), asking for a change in review methodology in the middle of the review process was unacceptable, since both sides weren’t in agreement. Overview In this case, the defendants proposed to the court to use technology assisted review (TAR) to review and produce documents. The plaintiffs argued against the use of TAR. In defense of using TAR, the defendants argued the following: TAR is “standard practice and commonly... 
More data is stored relating to litigation than ever before. In Mickelson et al v. PGA Tour, Inc. (N.D. Cal. Nov. 17, 2022), the court answers the question on how far the requirement to produce relevant data extends. Overview In this antitrust case about the PGA suspending golfers who joined a competing tour (LIV), the court reviewed whether nonparty custodians would be required to search and collect requested data for this case. A few plaintiffs who originally joined the claim against the defendant voluntarily exited the lawsuit, but the defendant still served... 
Red Wolf Energy Trading LLC v. Big Capital Management, LLC (D. Mass., Sept. 8, 2022) is a great example of how it’s nearly impossible for parties to hide relevant data from the court. In most cases, parties will get caught, with severe consequences ensuing. Overview In this case involving trade secrets, the plaintiff moved for sanctions against the defendants for failing to produce relevant Slack and Google documents even though multiple court orders required the production of this data. The plaintiff claimed that the defendants tried to steal their software and code...