Tagged: E-mail

Raising the Specter of Discovery Abuse: The Importance of Developing a Discovery Record Before Filing a Motion to Compel

Raising the Specter of Discovery Abuse: The Importance of Developing a Discovery Record Before Filing a Motion to Compel

Two recent decisions highlight the importance of establishing a record of discovery abuse before filing a motion to compel based upon the commonly held suspicion that a responding party is withholding information and/or has failed to adequately preserve or search for information. Even in situations where a party is convinced that an adversary has failed to produce discoverable information, a litigant will face an uphill climb in pursuing a motion to compel in the absence of concrete evidence as to an adversary’s discovery shortfalls, including evidence of data deletion, untimely or absent preservation efforts, and/or the failure to produce information produced by other parties or third-parties that clearly should be in the possession of the responding party. Winn-Dixie Stores, Inc. v. Eastern Mushroom Marketing Cooperative (E.D. Pa.) In a recent decision from the Eastern District of Pennsylvania, Judge Schiller denied plaintiffs’ motion to compel in a case where plaintiffs insisted that “there simply must be responsive documents,” but plaintiffs were unable to provide any specific evidence to support their speculation. In this antitrust litigation involving allegations that defendants colluded to raise the price of fresh agarics mushrooms, plaintiffs sought all documents from defendants regarding the sale of mushrooms to plaintiffs....

Disappearing Act: Northern District of California Issues Rare Terminating Sanctions for Spoliation on a Massive Scale

Disappearing Act: Northern District of California Issues Rare Terminating Sanctions for Spoliation on a Massive Scale

In WeRide Corp. v. Kun Huang, the Northern District of California addressed an egregious case of discovery abuses and spoliation by defendants in a business litigation involving the alleged theft of autonomous vehicle technology. Applying Federal Rules of Civil Procedure 37(b) and 37(e), the court issued rare terminating sanctions against several defendants who willfully and intentionally deleted various forms of ESI, including relevant emails, status reports, and source code, well after the commencement of litigation and after a preservation order issued by the court requiring the preservation of such information. Defendants compounded these abuses by adopting the use of “DingTalk,” an ephemeral communication technology, after the court had issued the preservation order. WeRide, a technology company engaged in the business of developing autonomous cars, employed defendant Jing Wang as CEO in January 2018. WeRide alleged that Wang went on to form his own company, AllRide, as a direct competitor. WeRide also alleged that former employee defendant Kun Huang was recruited by Wang to work for AllRide while still employed by WeRide. WeRide alleged that Huang downloaded various forms of data during this time period and transferred this data onto several USB devices from two WeRide-issued computers, then proceeded to delete...

Facebook Hacking Claims Dismissal Motion 0

Facebook Hacking Claims Dismissal Motion

Every now and then, a court issues a decision that is as interesting for its facts as it is for the import of its legal holding. The Second Circuit Court of Appeals recently issued such a decision involving application of the respective statutes of limitation for private claims made under the Stored Communications Act (“SCA”) and the Computer Fraud and Abuse Act (“CFAA”).

Two Failures to Preserve, Two Starkly Different Results in New York 0

Two Failures to Preserve, Two Starkly Different Results in New York

Two recent spoliation decisions, both out of the same New York Court and issued within a week of each other, demonstrate the potential for starkly different sanctions results depending on the level of culpability of the spoliator. AJ Holdings Group, LLC, v. IP Holdings, LLC, Index No. 600530/2009 (Sup. Ct. N.Y. County, September 19, 2014) and L&L Painting Co., Inc. v. Odyssey Contracting Corp., 2014 N.Y. Misc. LEXIS 4300 (Sup. Ct. N.Y. County, September 25, 2014) are both breach of contract actions in which plaintiffs were accused of spoliating evidence.

Blind CCs and “Replies to All” – An Email Trap for the Unwary Attorney 0

Blind CCs and “Replies to All” – An Email Trap for the Unwary Attorney

Some traditional practices from the paper era don’t translate well to the world of e-communication. And some are downright dangerous. Back in the day, attorneys would often “bcc” their clients on correspondence to adversaries, an efficient and relatively safe means of keeping the client apprised. No longer in the age of email, where the ability to instantly respond invites quick, at times reactionary, replies that can easily fall into the wrong hands, with potentially devastating consequences.