Exterro's Legal GRC Breakdown

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Case Law Alert: HBO Loses E-Discovery Sanction Motion for Data Spoliation

Created on May 6, 2022


Vice President, E-Discovery

The severity of the e-discovery sanction you seek will ultimately affect the ruling by the court. Parties must understand that seeking a severe, adverse inference instruction will require that you prove “intent to deprive” evidence, which was not shown in Sapia v. Home Box Office. Overview In this Fair Labor Standards Act case about retaliation “as a result of their participation in that lawsuit, in the form of not being hired for subsequent HBO production,” the defendant motioned for spoliation sanctions against the plaintiffs under Rule 37. At the beginning of... Read More

Logistical Best Practices for Managing a Document Review

Created on April 22, 2022


Vice President, E-Discovery

With market forces demanding in-house legal departments do "more with less," legal operations and legal project management are disciplines whose time has arrived. More and more in-house departments and law firms are hiring professionals (whether legal pros or project management specialists) to ensure that projects come in on-time and on-budget. But unfortunately, not every legal department has the luxury of hiring dedicated project managers or operations specialists. Sometimes legal pros, whether paralegals or attorneys, have to make do. But mastering the basics of e-discovery project management is possible--and we're here to help... Read More

Case Law Alert: Failure to Proactively Preserve Data Leads to Sanctions

Created on April 22, 2022


Vice President, E-Discovery

Parties have a duty to preserve potentially relevant data when a party knows or should know that the evidence may be relevant to future litigation. When data is stored in specific locations without backup the likelihood of inadvertent deletion is high. In Europe vs. Equinox Holdings, Inc. the defendant failed to preserve relevant evidence and had no backup, which led to spoliation sanctions. Overview: In this employee unlawful discrimination case, the plaintiff moved for spoliation sanctions against her employers, the defendants, for failing to preserve relevant data that, she alleged, supported her... Read More

Case Law Alert: Why Context Matters when Issuing Spoliation Sanctions

Created on April 8, 2022


Vice President, E-Discovery

Context and surrounding circumstances are important factors when determining if the court will see spoliation sanctions as warranted. In Emerson Creek Pottery v. Emerson Creek Events (W.D. Feb. 18, 2022), learn why one email implying that data was not correctly preserved did not ultimately lead to sanctions. Overview In this case, the plaintiff motioned for a spoliation inference against the defendant, because the plaintiff inadvertently received an email from the defendants’ counsel stating that, in the plaintiff’s interpretation, not all requested emails were produced in discovery. Leading up to trial, the defendants’... Read More

Case Law Alert: No Spoliation for Deleted Evidence--Here’s Why

Created on March 21, 2022


Vice President, E-Discovery

It’s understandable when a party assumes that any deleted evidence in a case demonstrates ill will or could be detrimental to the party’s case. While some of the time this may be true, as Hamilton v. Oswego Community Unit School District 308 shows, there are circumstances where information is not preserved but that courts will not view as spoliation. Overview In this case around retaliation against a school for reporting child abuse, the plaintiffs (the parents of the child) moved for e-discovery sanctions due to the defendant (the school) failing to... Read More

Case Law Alert: Use of Ephemeral Messaging Leads to Adverse Inference Sanction

Created on March 11, 2022


Vice President, E-Discovery

The BYOD (bring your own device) revolution provided just a glimpse into the data preservation nightmares that are unfolding today. With the increased use of ephemeral apps, legal teams must have clear policies for when their clients may use these technologies or else risk sanctions, as in FTC v. Noland. Overview In this case, the plaintiff motioned for spoilation sanctions against the defendants based on the defendants’ intentional use of messaging and email apps to hide evidence from the plaintiff, resulting in the spoliation of evidence. This case arose out of... Read More

Case Law Alert: Inadequate Witness Preparation Results in Sanctions

Created on February 25, 2022


Vice President, E-Discovery

Making sure a witness is adequately prepared for a deposition can prevent serious consequences. Ensuring that corporate representatives are effectively prepared to answer questions around their organization’s data infrastructure can help to prevent e-discovery sanctions, like those imposed in Oro BRC4, LLC v. Silvertree Apartments. Overview In this case, defendant’s head of IT was deposed in response to a notice as to certain topics related to the collection and production of ESI. Finding the witness ill-prepared to answer questions, plaintiffs filed a motion for sanctions, including costs, fees, and an additional... Read More