BREAKING NEWS! Spoliation of Evidence (e.g. Text Messages) Leads to the Arrest of a Former BP Engineer

Created on April 24, 2012

By Mike Hamilton
Vice President, E-Discovery

As reported back in late March (see Re-purpose Your E-Discovery Process for Effective Regulatory Inquiries), organizations and their employees are being presented with additional e-discovery challenges when responding to regulatory inquiries outside the civil context, like the risk of criminal charges for obstruction of justice. Kurt Mix, former BP engineer, has become the next e-discovery poster child for non-compliance.Tuesday, Mix was arrested by the Department of Justice (DOJ) for two counts of obstruction of justice on charges of intentionally destroying evidence requested by federal criminal authorities investigating the April 20, 2010, Deepwater... Read More

E-Discovery Spoliation Claims: Can you get past the threshold question?

Created on April 18, 2012

By Mike Hamilton
Vice President, E-Discovery

The complexities that come with identifying and producing electronically stored information (ESI) in e-discovery has made the issue of spoliation a common battleground for parties to argue for sanctions or adverse inference instructions. But before one can prove that ESI was destroyed, they must first address the spoliation threshold question, “Did relevant evidence ever even exist"?Kullman v. New York (N.D.N.Y. Apr. 4, 2012) provides an excellent illustration of this point.In this employment litigation case, the U.S. District Court for the Northern District of New York rejected the plaintiff's appeal for an adverse... Read More

Controlling E-Discovery Spending Sprees: Will the courts put a stop to the madness?!

Created on April 4, 2012

By Mike Hamilton
Vice President, E-Discovery

Electronic discovery is expensive. Identifying, collecting, processing, analyzing and finally producing electronically stored information (ESI) to opposing counsel is time consuming and resource intensive. Besides the costs of producing data, expenses are multiplied by the current adversarial nature of litigation. “In some cases discovery becomes a tool with which to bludgeon the other side into submission," wrote Judge Joe Brown in a recent ruling. “Rather than monitoring and moderating the process," parties are in many cases simply “throwing gasoline on the fire."Judge Brown's pointed rebuke was in response to Lubber, Inc. vs... Read More

Repurpose Your E-Discovery Process for Effective Regulatory Inquiries

Created on March 28, 2012

By Mike Hamilton
Vice President, E-Discovery

As reported in a previous Tuesday Trends post, the rise of regulatory investigations has made e-discovery preparedness imperative outside the context of formal litigation. In Price Waterhouse Cooper's U.S. Annual Report, “Risk in Review", it discovered that 6 out 10 executives surveyed view “regulatory risk as a major threat." This threat of regulatory inquiries has become reality for most organizations. According to Fulbright & Jaworski's 2011 Litigation Trends Survey, over the past three years 37% of all companies surveyed reported an increase in regulatory inquiries, and one-third spent more time addressing regulatory... Read More

Keyword Search Terms: How to adequately argue for alternative search parameters

Created on March 15, 2012

By Mike Hamilton
Vice President, E-Discovery

Within early stages of litigation, to successfully negotiate and object to discovery parameters, such as keyword search terms, parties must have a legal justification AND provide adequate evidence to support their objection. Unsupported statements and concerns about producing “an unreasonable number of irrelevant results," or that discovery parameters are not proportional to the matter are only conclusory statements.The errors made in Custom Hardware Eng'g & Consulting v. Dowell (E.D. Mo. Jan. 3, 2012) showcases how courts are rejecting discovery objections when attorneys don't take the time or know how to support their... Read More

“Reasonable Anticipation” of Litigation Re-Affirmed as the Standard for Triggering Legal Holds

Created on March 7, 2012

By Mike Hamilton
Vice President, E-Discovery

Most attorneys understand that when a complaint is filed with the court, each party has a legal obligation to issue legal hold notices to all applicable custodians. But many struggle to understand that this is not actually the correct legal standard for preserving custodian information. Case in point, Voom HD Holdings LLC v. Echostar Satellite LLC (NY Slip Op. Jan. 31, 2012). In this case, the New York Appellate Court adopted the federal standard under Zubulake that “once a party reasonable anticipates litigation, it must suspend its routing document retention/destruction policy and... Read More

The Value of Project Management: Avoiding a “Huge Hole” in your E-Discovery Process

Created on March 1, 2012

By Mike Hamilton
Vice President, E-Discovery

Just when you think the importance of e-discovery project management has been sufficiently established, another case, In Re Delta/AirTrain Baggage (N.D. Ga. Feb. 3, 2012), pops up reinforcing its significance. This antitrust litigation case against Delta Airlines and AirTran arose amid a number of legal activities, including a DOJ regulatory inquiry, asserting a violation of the Sherman Act due to the two companies charging passengers $15 baggage fees. While the United States District Court granted spoliation sanctions against Delta for a violation of multiple Federal Rules of Civil Procedure (FRCP) rules, a... Read More

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