Gibbons Law Alert

Gibbons Law Alert

Tagged: Litigation Hold

Agree or Else: Delaware Adopts Revised Default Standards for Discovery

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Posted in General Litigation

On February 9, 2012

Effective December 8, 2011, the U.S. District Court for the District of Delaware revised its Default Standard for Discovery, Including Discovery of Electronically Stored Information (“ESI”). This third version of the Revised Default Standards contains some new provisions that apply to the discovery of ESI absent agreement by the parties or court order. The Revised Default Standards also set a detailed schedule for the initial exchange of discovery in patent litigation, and reinforce the Court’s expectation of cooperation among the parties and proportionality in the preservation, identification and production of relevant information. Some of the highlights and practical points of the Revised Default Standards are as follows:

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

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On December 22, 2011

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

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Posted in Corporate Information and Records Management Policies / Litigation Preparedness and Strategies

On December 12, 2011

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 Fifth Annual Gibbons E-Discovery Conference Kicks Off with an Interactive and Thought-Provoking Overview of the Past Year’s Pivotal E-Discovery Case Decisions

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On November 16, 2011

The Fifth Annual Gibbons E-Discovery Conference kicked off with an interactive overview of the important judicial decisions from 2011 that shaped and redefined the e-discovery landscape. Before an audience of general and in-house counsel, representing companies throughout the tri-state area, the esteemed panel of speakers, including Michael R. Arkfeld, Paul E. Asfendis, and Mara E. Zazzali-Hogan, moderated by Scott J. Etish, tackled the issues faced by the courts over the past year. Through a series of hypotheticals, the panelists and attendees analyzed and discussed how to handle the tough e-discovery issues that arose and how the courts’ decisions again reshaped the e-discovery landscape as we know it. Litigation hold protocols and spoliation concerns, the use of social media in discovery with its attendant ethical concerns, and the use of social media and the Internet in the courtroom were the hot topics of the day. This interactive overview of the past year’s hot button, e-discovery issues was an instant success and clearly set the tone for the remainder of the conference.

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

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Posted in Litigation Preparedness and Strategies

On November 11, 2011

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.

Gearing Up for the Litigation Hold Panel Discussion at Gibbons Fifth Annual E-Discovery Conference

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Posted in Litigation Preparedness and Strategies

On October 26, 2011

Have you ever felt daunted by the prospect of issuing a litigation hold? If so, you are not alone — particularly in today’s dynamic legal environment, where even judges within the same judicial district disagree as to what is required to satisfy the duty to preserve evidence and avoid spoliation sanctions. Please join us at Gibbons Fifth Annual E-Discovery Conference, where we will deconstruct an effective litigation hold notice paragraph-by-paragraph, explaining why each element is included and how to tailor hold notices to any litigation. We will also explain recent developments in this area of the law, which you can draw on to position your company to effectively issue and administer litigation holds, avoid game-changing spoliation sanctions and return the focus to litigating matters on the merits.

Gibbons to Host 5th Annual E-Discovery Conference – November 3, 2011

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Posted in Technology Developments and Issues

On October 13, 2011

The Gibbons E-Discovery Task Force will host its fifth annual full day E-Discovery Conference for corporate counsel and information technology professionals on November 3, 2011, in the firm’s Newark, NJ office. Devoted to the latest developments in electronic discovery and corporate information management, this program will include speakers who are among the most respected names in the e-discovery field, including former United States Magistrate Judge John Hughes, e-discovery authority Michael Arkfeld, and representatives of leading corporations and e-discovery service providers. Among the Gibbons attorneys who will present and moderate panels are Task Force Chair, Mark S. Sidoti and Task Force members, Paul E. Asfendis, Melissa DeHonney, Luis J. Diaz, Phillip J. Duffy, Scott J. Etish, Jennifer A. Hradil, Jeffrey L. Nagel, and Mara E. Zazzali-Hogan.

New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On September 28, 2011

Failure to properly preserve electronic evidence continues to provide at-risk litigants with the ability to steer the court from scrutiny of the merits, and drastically shift the balance of litigation leverage. The latest example of this is NVE, Inc. v. Palmeroni out of the District of New Jersey. This case involved NVE’s claims of breach of fiduciary duty against its former employee Palmeroni. At least on the specific Complaint allegations, NVE’s case against Palmeroni seems formidable — while working as a NVE salesman, the defendant allegedly entered into secret kickback arrangements with product purchasers, and formed a dummy entity with another NVE employee to divert sales of NVE’s products for their own benefit. Palmeroni was terminated in 2006 and later sued by NVE. Seems like a pretty good case, if the court and a jury could get to it.

E-Discovery Sanctions May Be Entered and Have Consequences Long After Litigation Concludes

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 27, 2011

Even after a particular case has concluded, the risk of sanctions arising from e-discovery violations persists. Green v. Blitz U.S.A. was one of many products liability suits alleging injuries resulting from the defendant’s failure to equip its gas can with a “flame arrester.” Over a year after the conclusion of the trial and entry of final judgment in Green, the court entered monetary and non-monetary sanctions against the defendant for its failure to adequately preserve and identify potentially relevant documents. Because the matter had closed, many of the non-monetary sanctions under Rule 37(b)(2) were not available. Accordingly, the court fashioned a creative non-monetary sanction requiring the defendant (1) to provide the sanctions opinion to all plaintiffs in any litigation against the defendant for the prior 2 years; and (2) to file the opinion with any court in any new lawsuit in which the defendant is a party for 5 years following entry of the opinion.

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 6, 2011

Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.

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