Tagged: Document Retention

Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases 0

Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases

The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

The Fifth Annual Gibbons E-Discovery Conference Closes With Helpful Guidance on Drafting Records Management Policies 0

The Fifth Annual Gibbons E-Discovery Conference Closes With Helpful Guidance on Drafting Records Management Policies

An effective and up-to-date set of records management policies may help companies reduce the likelihood of sanctions and other adverse consequences by ensuring records are retained and preserved in accordance with legal requirements, according to Gibbons Director Phillip Duffy; TechLaw Solutions’ Northeast Regional Director Michael Landau; and Inventus LLC Senior Consultant Bryan Melchionda.

The “Dos” and “Don’ts” of Litigation Hold Notices: Deconstructing the Effective Litigation Hold Notice 0

The “Dos” and “Don’ts” of Litigation Hold Notices: Deconstructing the Effective Litigation Hold Notice

The “Dos” and “Don’ts” of litigation hold notices were discussed at the Fifth Annual Gibbons E-Discovery Conference on November 3, 2011. The distinguished panel included the Honorable John J. Hughes, U.S.M.J. (Ret.), the Director and Chair of the firm’s E-Discovery Task Force Mark Sidoti, and Melissa DeHonney, an associate in the Gibbons Business & Commercial Litigation Department and member of the firm’s E-Discovery Task Force.

SEC Document Destruction Policy Suspended 0

SEC Document Destruction Policy Suspended

The SEC recently admonished its enforcement staff attorneys to cease any efforts to purge documents from investigative files amidst criticism that the agency wrongfully destroyed thousands of documents related to high profile enforcement matters, including major fraud investigations involving Wall Street banks. The cease order was disclosed in a letter last month from the SEC’s general counsel. The order was precipitated by a whistleblower — long-time SEC enforcement attorney Darcy Flynn — who advised key congressional representatives that the agency had destroyed thousands of investigative files from preliminary enforcement investigations (internally referred to as “MUIs” — or matters under inquiry).

Motion for Sanctions Denied Due to DuPont’s Reasonable, Professional Efforts to Implement and Update Litigation Hold Notices 0

Motion for Sanctions Denied Due to DuPont’s Reasonable, Professional Efforts to Implement and Update Litigation Hold Notices

On April 27, 2011, the Court denied Defendant Kolon Industries, Inc.’s (“Kolon”) motion for sanctions against E.I. du Pont De Nemours and Company (“DuPont”) for alleged spoliation of four employees’ e-mail accounts and documents in litigation regarding trade secret misappropriation, theft of confidential information and other related business torts. E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. (E.D. Va. Apr. 27, 2011). In essence, the Court concluded there was no spoliation because DuPont’s efforts to implement and update litigation hold notices – as well as the company’s commitment to its electronic discovery obligations – were reasonable.

The Rising Tide of Sanctions for E-Discovery Failures 0

The Rising Tide of Sanctions for E-Discovery Failures

To echo a popular tag line frequently heard on Top 40 radio stations, when it comes to court-imposed sanctions for e-discovery failures, “the hits just keep on comin’!” According to a recent study published in the Duke Law Journal, sanctions for e-discovery violations are occurring more frequently than ever. Dan H. Willoughby, Jr., Rose Hunter Jones, Gregory R. Antine, Sanctions for E-Discovery Violations: By The Numbers, 60 Duke Law J. 789 (2010). However, there may be light at the end of the tunnel, as it appears that the frequency of sanctions awards is trending downward after hitting an all-time high in 2009.

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed 0

Orbit One: Inadequate ESI Preservation Does Not Merit Sanctions Absent Evidence That Relevant Information Has Been Destroyed

Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y. Oct. 26, 2010) represents a dichotomy in jurisprudence on ESI preservation efforts and the imposition of automatic sanctions. In Orbit One, Magistrate Judge James C. Francis, IV found that regardless of how inadequate a litigant’s preservation efforts may be, sanctions are not appropriate without proof that “information of significance” has been lost. The court determined that the threshold determination must be “whether any material that has been destroyed was likely relevant even for purposes of discovery.” In so holding, the court discussed and diverged from Judge Shira A. Scheindlin’s decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, which earlier held that sanctions may be warranted for inadequate preservation efforts even if no relevant evidence is lost. 685 F. Supp.2d 456, 465 (S.D.N.Y. 2010).

Time For a Bright-Line Preservation Rule? 0

Time For a Bright-Line Preservation Rule?

As was recently reported in the New York Law Journal, one of the issues for discussion at the recent annual meeting of the New York State Bar Association this January was the need for more uniformity, and possibly even a bright-line rule, to govern issues of document preservation. This was the focus of a panel including two New York State Supreme Court justices and three federal judges from the Southern District of New York – District Judge Shira Scheindlin and Magistrate Judges Andrew Peck and James Francis.

Delaware Court of Chancery Adopts ESI Preservation Guidelines 0

Delaware Court of Chancery Adopts ESI Preservation Guidelines

Following the lead of other state courts, Delaware’s Court of Chancery — known for handling of some of the nation’s most complex corporate matters — has adopted guidelines for the preservation of electronically stored information (“ESI”). The guidelines reference counsel’s “common law duty to their clients and the Court” to preserve ESI, noting that a “party to litigation must take reasonable steps to preserve information, including ESI, that is potentially relevant to the litigation and that is within the party’s possession, custody or control.” At a minimum, this means that “parties and their counsel must develop and oversee a preservation process,” including the dissemination of a litigation hold notice.

New York Courts Address ESI Inconsistencies at State and Federal Level:  An Erie Solution? 0

New York Courts Address ESI Inconsistencies at State and Federal Level: An Erie Solution?

A panel of New York state and federal judges recently convened to discuss the differing standards between New York state and federal law governing the pre-litigation preservation of ESI and to make recommendations to resolve such inconsistencies. The panel’s findings are reported in the publication, Harmonizing the Pre-Litigation Obligation to Preserve Electronically Stored Information in New York State and Federal Courts. The critical issue is determining when a litigant’s duty to preserve ESI is triggered, how that duty is fulfilled, and the potential consequences for breaching the duty. The panel recognized that the disparate treatment that litigants may receive in New York state courts versus federal courts could lead to a great deal of confusion and uncertainty, even for parties that cautiously implement ESI strategies with an eye towards future litigation. For example, the trend in New York federal courts has been in favor of the adoption of per se culpability when determining a litigant’s state of mind. In Zubulake, the court held that once the duty to preserve ESI attached, any destruction of documents would be, at a minimum, negligent. In Pension Committee, the court held that failure to issue a written litigation hold constituted “gross negligence.” State courts, on the other hand, have largely declined to adopt such per se rules, preferring instead to analyze a litigant’s culpability on a case-by-case basis, as the courts did in cases such as Deer Park and Ecor Solutions.