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September 02, 2014

Clarifying the Law of the Land for Preservation in the Sixth Circuit

Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 WL 2869286 (6th Cir. June 25, 2014) The case arose from a contract involving the development of delivery- and subscription-tracking software for the Chicago Tribune. The relationship between the parties deteriorated, and the defendant Paragon terminated the contract. The plaintiff, Automated Solutions Corp. (ASC), […] ... continue reading

August 21, 2014

Zapproved Is No. 289 on the 2014 Inc. 500 List of Fastest-Growing U.S. Private Companies

Inc. magazine ranked Zapproved No. 289 on its 33rd annual Inc. 500|5000, an exclusive ranking of the nation’s fastest-growing private companies. Zapproved also ranked No. 24 in the category of fastest growing software companies in the nation, ranked No. 5 on the list of Oregon’s top growing private companies and No. 4 on the Portland […] ... continue reading

August 13, 2014

Zapproved Predicts Reaching the Tipping Point for Automated Data Preservation By 2015

Second Annual Survey Reveals Trends Towards Automating Data Preservation and the Risks and Concerns Facing Legal Professionals The 2014 Legal Hold and Data Preservation Benchmark Survey, the largest survey conducted in the area of electronic discovery, identifies several key findings that show a significant shift toward more automation in litigation holds resulting in higher confidence […] ... continue reading

July 30, 2014

Texas Supreme Court Overturns Case Based on Spoliation Instruction to Jury

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) On July 3, the Supreme Court of Texas issued a significant opinion in clarifying appropriate sanctions for spoliation. The ruling removes discretion of trial judges to administer sanctions by only permitting jury instructions when the spoliation was intentional or deprived opposing party […] ... continue reading

July 24, 2014

What Is the Extent of Counsel’s Obligation to Ensure Clients Preserve Data?

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13cv825 (E.D. Va. 2014) Spoliate once, shame on the client; however, spoliate two or more times, shame on the client’s counsel. At least, that seems to be the likely outcome of a dispute over attorneys’ fees and costs currently pending before the Eastern District of Virginia. In […] ... continue reading

July 24, 2014

Discovery Cannot “Go Smoothly” When Counsel Do Not Exercise Proper Oversight Into Preservation

Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014) To put it mildly, “[d]iscovery did not go smoothly” in Brown v. Tellermate Holdings Ltd., an age discrimination case stemming from the termination of the plaintiffs’ employment. According to the court, “significant problems arose in this case for […] ... continue reading

July 24, 2014

Company That Failed to Issue Litigation Hold for Three Years Suffers Adverse Inference

Osberg v. Foot Locker, No. 07-cv-1358 (KBF), 2014 U.S. Dist. LEXIS 95543 (S.D.N.Y. July 14, 2014) In Osberg v. Foot Locker, an ERISA matter, the plaintiffs filed a motion seeking sanctions for spoliation alleging that the defendants had destroyed documents. Despite several pending lawsuits involving similar issues against the defendants that were filed as early […] ... continue reading

June 04, 2014

A Party’s Failure to Preserve Invites Judicial Intervention

A magistrate judge recently ordered intrusive measures to rectify a plaintiff’s inadequate, self-directed search for ESI in Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014). The deficiencies included the following: failure of plaintiff’s counsel to travel to Colombia to meet with the client’s IT personnel about the relevant […] ... continue reading

June 04, 2014

A Cautionary Tale About E-Discovery Sanctions

When one defendant turned against the others in Pacific Packaging Products, Inc. v. Barenboim, No. 09-4320, Mass. Super. Ct., a Massachusetts Superior Court judge turned against all of them. Judge Bruce Henry ordered default judgments, dismissed counterclaims, and ordered the payment of attorneys’ fees upon discovering the defendants in this trade secrets case had committed […] ... continue reading

May 20, 2014

Event Notice — Upcoming PREX Symposiums and User Group Meetings in Palo Alto and Chicago

Please join us for these outstanding events that are coming up in early June 2014! June 5 — Silicon Valley Symposium on Preservation Excellence Date:       Thursday, June 5, 2014 Agenda:  4:00 p.m. – Symposium: “Data Preservation in the Age of Social Media” 5:30 p.m.  – Complimentary Happy Hour Cost:         […] ... continue reading

May 08, 2014

Texas Judge Orders Adverse Inference Sanction for ‘Staggering’ Loss of Evidence

Quantlab Techs. Ltd. v. Godlevsky, No. No. 4:09-cv-4039, 2014 U.S. Dist. LEXIS 20305 (S.D. Tex. Feb. 19, 2014) The court determined that an adverse inference instruction was the appropriate remedy for the loss of a “staggering amount of evidence potentially relevant to this case,” id. at *82, even though the plaintiffs could not adduce evidence […] ... continue reading

May 08, 2014

Spoliation Four Ways: Washington Court Orders $25,000 and Attorneys’ Fees and Costs

Knickerbocker v. Corinthian Colleges, No. C12-1142JLR (W.D. Wash. Apr. 7, 2014) In this employment law case, the court found “clear and convincing evidence” that the defendant and its counsel “have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith.” Sanctions were necessary to remedy their […] ... continue reading

April 14, 2014

Last-Minute Revision Brings Forth Streamlined Proposal for Rule 37(e) at Advisory Committee Meeting

On April 10-11 2014,  the Advisory Committee on Civil Rules chaired by U.S. District Judge David Campbell (D. Ariz.) convened at Lewis & Clark College in Portland, Ore., to consider final proposals to amend the Federal Rules of Civil Procedure. While not final, this was the culmination of an effort that kicked off in 2009 and […] ... continue reading

April 02, 2014

Legal Hold Pro Voted ‘Best of The National Law Journal 2014′

Legal Hold Pro is proud to announce that we have been voted the best over our competitors in the 2014 The Best of The National Law Journal Readers Rankings for legal hold solutions. Nearly 6,500 legal professionals cast votes for over 465 of their favorite vendors in 94 categories. The winners were announced on March 31. Click […] ... continue reading

March 12, 2014

Pharmaceutical Company Faces Setback from Sanctions for ‘Bad Faith’ Spoliation in Huge Product Liability Case

A 2,600-member class action lawsuit took a damaging turn on the eve of a critical bellwether trial when a judge ruled that the pharmaceutical company disregarded a litigation hold resulting in the loss of critical communications about the drug in question. The trial stemmed from allegations that using Actos® from Takeda Pharmaceutical could result in […] ... continue reading

March 12, 2014

Judge Refuses to Vacate Spoliation Sanctions in Intellectual Property Dispute – Even After Case Settles

A U.S. Magistrate in the Eastern District of Virginia took the extraordinary step of handwriting the denial of a motion by the parties to have spoliation sanctions vacated in Digital Vending Services International LLC v. The University of Phoenix Inc. et al., No. 2:09-cv-00555, E.D.Va. This could mark a new threshold in the courts of not […] ... continue reading

January 31, 2014

Court Fines Defendants $931,500 in Pradaxa Class Action After Repeated Failures to Implement Legal Holds

The class action product liability case against Boehringer Ingelheim Pharmaceuticals Inc., or BIPI, regarding the blood thinning drug sold as Pradaxa took a stunning turn with December 9, 2013 opinion by Chief Judge David R. Herndon of the Southern District of Illinois. In the blistering opinion the Court cited failure after failure, including misrepresentation of […] ... continue reading

January 31, 2014

Selective Preservation of Text Messages Uncovered with an Undisclosed Subpoena that Is Allowed to Impeach Evidence; Adverse Inference Sanction Results

The January 16, 2014 opinion in Calderon v. Corporacion Puertorique a de Salud from the District of Puerto Rico showed that selective preservation (or selective spoliation, depending on one’s perspective) is unwise, but also an undisclosed subpoena can be used as long it is used solely for impeachment purposes. District Judge Francisco A. Besosa found […] ... continue reading

January 31, 2014

Collections Tracking in Legal Hold Pro Provides Real-time Intelligence Across the Entire Preservation Process

We introduced today the new Collections Tracking module in Legal Hold Pro™, the industry’s fastest growing legal hold management software. With Collections Tracking, in-house legal teams will have a powerful tool for directing and overseeing both the preservation and collection of potentially responsive electronically stored information. Once custodians have been notified of a preservation obligation, […] ... continue reading

December 18, 2013

Top 10 Legal Hold and Data Preservation Opinions of 2013

In our second annual recap, we are looking back at the year that was in, terms of opinions, centered on legal holds and data preservation. Any expectation that the number of cases would subside fell by the wayside early in 2013 with a number of opinions in the first quarter and the pace has not […] ... continue reading

December 11, 2013

Calif. Magistrate Judge Recommends Adverse Inference Sanction for Failure to Issue Legal Hold Despite ‘Saved Everything’ Defense

On November 25, 2013, U.S. Magistrate Judge William V. Gallo of the Southern District of California issued an order in a patent infringement suit in which he granted an adverse inference and monetary sanctions for spoliation sanctions deemed “grossly negligent.” The ruling in Zest IP Holdings, LLC v. Implant Direct Mfg., LLC (S.D. Cal., Civil […] ... continue reading

December 11, 2013

Puerto Rico Magistrate Judge Denies Adverse Inference Motion Absent of Prejudice for Spoliation of Executives’ Personal Email

The plaintiff in a commercial litigation between two telecom providers in Puerto Rico brought a motion for an adverse inference sanction when it learned that relevant personal emails of the defendant’s executives were not preserved. The court denied the motion citing the defendants’ preservation efforts including a timely litigation hold, willingness to recover lost emails, […] ... continue reading

November 26, 2013

Legal Hold Pro Wins ‘Best of Legal Times 2013′

Legal Hold Pro is proud to announce that our software has been voted the best legal hold solution over our competitors in the 2013 The Best of Legal Times annual readers’ poll. The awards for 90 different categories were announced on November 25 and will be distributed in a special print supplement to The National Law […] ... continue reading

November 01, 2013

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold

A U.S. Magistrate Judge Robert M. Levy in the Eastern District of New York ordered an adverse inference sanction and payment of attorneys’ fees for the plaintiff in a case due to spoliation of evidence after the court learned that no litigation hold was issued. The court deemed the plaintiff’s actions to constitute gross negligence […] ... continue reading

November 01, 2013

Massive Product Liability Tort Not Derailed by Spoliation Claim Due to Rule 37 ‘Safe Harbor’

In what is being characterized as one of the largest mass civil lawsuits, defendant Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) avoided sanctions due to the destruction of a key custodian’s email because it occurred prior to the trigger and in accordance with the company’s document retention policy. Chief Judge David R. Herndon provided a thorough analysis […] ... continue reading

September 26, 2013

PREX13 Recap – Leading E-Discovery Experts and Federal Judges Focus Recent Case Law, Rules Amendments, International Preservation and BYOD

The second annual Conference on Preservation Excellence (PREX13) was held September 18-19 in Portland, Oregon.  Attended by over 130 participants, the 2013 conference again drew praise by focusing on the importance of sound data preservation and best practices.  The goal for PREX each year is to bring some of the best minds in e-discovery together […] ... continue reading

September 26, 2013

Kansas Federal Court Finds No Prejudice as Grounds for Denying Spoliations Sanctions

A Magistrate Judge in Kansas recommended that since the plaintiff could not show prejudice from the defendants’ spoliation of ESI that the motion for an adverse inference be denied in Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013). The recommendation, which was adopted in full by the presiding […] ... continue reading

September 06, 2013

Just Published! Legal Hold and Data Preservation Benchmark Survey Finds Majority Are Still in ‘Adolescence’ of Preservation Process Maturity

We just published the landmark Legal Hold and Data Preservation Benchmark Survey 2013. Conducted by the Steinberg Group LLC, the survey measured the prevailing attitudes of 525 professionals who currently oversee legal hold processes, making it the largest study of its kind focused specifically on how organizations are currently handling legal data preservation. Some key findings […] ... continue reading

August 29, 2013

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs […] ... continue reading

August 29, 2013

Northern District of California Opinion Shows Judicial Restraint When Duty to Preserve Is Deemed ‘Not ‘Limitless’

By reading recent case law, it seems that there is no spoliation small enough for which a party will not file a motion for an adverse inference sanction. In AMC Technology, LLC  v. Cisco Systems, Inc., No.: 11-cv-3403 P, 2013 U.S. Dist. LEXIS 101372 (N.D. Cal. July 15, 2013), one such motion was denied when […] ... continue reading

July 28, 2013

Cox Communications Avoids Adverse Inference for Spoliation in Consumer Suit Due to Lack of Proof of Prejudice

In recent weeks there has been a spate of opinions weighing spoliation sanctions (i.e., Sekisui v. Hart, PTSI v. Haley) in which adverse inference instructions are specifically sought. Add Cottle-Banks v. Cox Communications, Inc., No. 10cv2133-GPC(WVG), 2013 U.S. Dist. LEXIS 72070 (S.D. Cal. May 21, 2013) to that list. The result handed down by U.S. […] ... continue reading

July 28, 2013

Slate of Proposed FRCP Amendments Approved for Public Comment on June 3

On June 3, 2013, the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure voted to approve the proposed amendments to the FRCP for public comment, a key step on their path toward adoption. As Law Technology News reported on June 6, 2013 in “Proposed Discovery Amendments Move to Public Comment:” […] ... continue reading

July 28, 2013

Colorado Court Deems Loss of ‘Key Player’s’ Evidence a Sanctionable Offense in Hart v. Dillon

A U.S. Magistrate Judge in Colorado found that the failure to preserve a recording by a key player after the duty to preserve attaches to be grossly negligent or willful behavior. As a result of this ruling, U.S. Magistrate David L. West (D. Col.) granted a motion for sanctions which are yet to be determined […] ... continue reading

July 28, 2013

Without Evidence of Prejudice, S.D.N.Y. Court Denies Sanctions Despite Spoliation of Evidence in Sekisui v. Hart

An opinion by U.S. Magistrate Frank Maas in the U.S. Southern District of New York may be a harbinger of how courts will evaluate spoliation cases in the coming years. In this case, whereas the plaintiff was found to be negligent with respect to actions to preserve relevant data, Judge Maas concluded the defendants failed […] ... continue reading

June 25, 2013

Proposed Rules Changes Seek to Standardize Sanctions for Spoliation

For those watching trends in electronic discovery, the debate about proposed amendments to the Federal Rules of Civil Procedure to address concerns over the rising costs of preservation and risk of spoliation sanctions have been under discussion for more than two years. The United States Courts’ Advisory Committee on Federal Rules has held numerous meetings […] ... continue reading

June 25, 2013

Solid Preservation Policy Turns Back Defendants’ Motion for Sanctions in New York

Not every spoliation motion results in sanctions, as was the case in Research Foundation of State Univ. of New York v. Nektar Therapeutics (N.D.N.Y. May 15, 2013).  In his opinion addressing several motions in the patent licensing dispute, Chief Judge Gary L. Sharpe denied Nektar’s motion seeking an adverse inference instruction and monetary sanctions “on […] ... continue reading

June 24, 2013

E-Discovery Experts Gather Last Week in Houston to Drill Into Preservation Challenges

This past week, we held another highly successful Mini-Conference on Preservation Excellence on June 19 in Houston, Texas (PREX-TX).  The half-day session focused on industry trends and best practices when it comes to data preservation and legal holds, and was led by two outstanding CLE program moderators, the Hon. Ron Hedges (former U.S. Magistrate Judge […] ... continue reading

June 24, 2013

Illinois District Court Hands Down Adverse Inference Sanction for Failure to Suspend Automatic Deletion of Data in ‘Bad Faith’

By Brad Harris On May 22, 2013, U.S. District Judge Joan H. Lekfow issued an opinion in Pillay v. Millard Refrigerated Services Inc. citing preservation failures done in bad faith as the court’s reasoning for granting a motion for an adverse inference instruction. The outcome reflects a number of recent cases nationwide including Kirgan v. […] ... continue reading

May 22, 2013

Kirgan v. FCA LLC – Rule 1: Preserve ESI When Litigation is Forthcoming. Rule 2: Don’t Mislead When Breaking Rule 1, or Sanctions Will Follow

In one of the more flagrant violations of the obligation to preserve, an employment case from Illinois is a clear illustration what is not a “culture of compliance.” In Kirgan v. FCA LLC, Case No. 10-1392, 2013 U.S. Dist. LEXIS 51747 (C.D. Ill. Apr. 10, 2013), the plaintiff had filed an EEOC claim contesting his […] ... continue reading

May 22, 2013

Google Not Given Safe Harbor Under Rule 37(e) for Failure to Preserve Past Versions

On April 2, 2013, U.S. Magistrate Paul Grewal in the Northern District of California issued an opinion in Dunbar v Google (2013 US Dist LEXIS 48630, N.D.Cal, April 2, 2013) that has the potential for far-reaching interpretation regarding the extent to which document revisions are subject to preservation. The nature of the case is the […] ... continue reading

May 22, 2013

PREX NY: Leading Experts Provide Updates on Latest Developments in Case Law and Preservation Best Practices

Following last September’s successful Conference on Preservation Excellence, or PREX for short,  Legal Hold Pro took the show on the road to New York on April 29, 2013. The half-day “mini-conference” was a highly successful due to a group of phenomenal speakers led by Paul Weiner (Littler Mendelson) and Robert Owen (Sutherland Asbill & Brennan […] ... continue reading

April 26, 2013

Arizona District Court Imposes Harsh Sanctions for Spoliation with a ‘Culpable Mind’ in Day v. LSI

What started out as a seemingly run-of-the-mill employment case quickly fell down the spoliation rabbit hole resulting in severe sanctions including partial default judgment, an adverse inference instruction and a $10,000 monetary award. The 29-page opinion by U.S. District Judge Cindy K. Jorgenson goes into great detail about the facts of the defendants’ preservation efforts […] ... continue reading

April 26, 2013

Adverse Inference Sanction Issued in N.J. Case Involving Spoliation of Facebook Data Is a Lesson on Social Media Disposition

An opinion from March in a personal injury case involving the deletion of a Facebook account is a good lesson for e-discovery professionals about the vulnerability of social media to irretrievable loss. U.S. Magistrate Steven Mannion ordered an adverse inference instruction to the jury after the plaintiff in Gatto v. United Air Lines was determined […] ... continue reading

March 20, 2013

Federal Circuit Overturns Adverse Inference Sanction for Spoliation in Adams. v. Dell

[Correction — This article has been corrected to show that the ruling was from the Federal Circuit, not the Tenth Circuit as originally reported. - Ed.] The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp. has been an ongoing saga with actions dating back to the 1990s. In recent […] ... continue reading

March 19, 2013

Two EEOC Discrimination Cases Lead to Serious Sanctions for ‘Inexcusable’ and ‘Careless’ Failures to Issue Litigation Holds Resulting in Spoliation

If you believe in coincidences, there was a significant one that occurred in February. Two Federal discrimination cases, EEOC v. JP Morgan Chase in the Southern District of Ohio (Sixth Circuit) and EEOC v. Ventura Corp. from the District of Puerto Rico (First Circuit), had rulings against defendants which were sanctioned for failing to preserve […] ... continue reading

March 19, 2013

Colorado Court Finds Negligence In the Case of the Missing Text Messages

Club owners and DJs going into business together may sound like a bad idea, and that notion was borne out in a recent Colorado case that involved an iPhone with text messages that had gone missing. District Judge R. Brooke Jackson issued a wide-ranging opinion in late January responding to seven motions; for the sake […] ... continue reading

February 18, 2013

Corporate Counsel Agenda Survey Shows Creating Culture of Compliance Is Among Top Concerns

A new national survey of corporate counsel released February 15 revealed that creating a culture of compliance is a top priority in 2013. The “Corporate Counsel Agenda 2013” survey published by ALM Legal Intelligence queried 126 GCs, Chief Legal Officers and deputy general counsels at companies with revenue ranging from more than $1 billion (43%), […] ... continue reading

February 18, 2013

New York and Delaware State Courts Address Preservation in New E-Discovery Rules

In the month of January, two influential state court systems introduced measures to improve the handling of electronic discovery that directly address the needs of litigants to improve data preservation. Both New York and Delaware are moving toward the standards outlined in the Federal Rules of Civil Procedure. The Delaware Court of Chancery adopted on […] ... continue reading

January 17, 2013

Gibson Dunn’s 2012 E-Discovery Report Includes Recap on Preservation Cases, Reform Efforts and Sanctions

Every January for the past few years, Gibson Dunn publishes an extensive summary of the key decisions in the area of electronic discovery. The 2012 edition was published on January 14 and for those interested in staying on top of the latest developments it is worthwhile reading. Following are a few highlights: Preservation (pp.25-27) As […] ... continue reading

January 16, 2013

Scope of Litigation Hold Extends to Independent Agents in New Jersey Ruling Resulting in Court Ordered Litigation Hold

An opinion out of the U.S. District of New Jersey weighed in on a gray area of data preservation when it ruled that “independent agents” were subject to the parent company’s preservation obligation and therefore required to receive a litigation hold. The case delved into issues pertaining to First American Insurance’s “possession, custody and control” […] ... continue reading

December 12, 2012

Just Published: ‘Legal Hold and Data Preservation Best Practices’ Provides Practical Tips from Experts on Preservation

Legal Hold and Data Preservation Best Practices is the most current and complete guide about preservation today. Developed in concert with some of the most respected names in electronic discovery and in-house practitioners, the Guide reflects a level of dialogue and depth of discussion on litigation holds and data preservation that is unprecedented. DOWNLOAD YOUR COMPLIMENTARY COPY […] ... continue reading

December 12, 2012

Top 10 Preservation Opinions of 2012

The pace of sanction cases continued unabated during 2012. The interesting development is that during 2012 the opinions were issued much more broadly than in past years, with key cases from the Western states as well as state courts. An interesting new twist is that several courts issued sanctions for preservation failures even when ESI […] ... continue reading

December 11, 2012

New Proposed Rule Changes Focus on Appropriate Sanctions for Spoliation

By Brad Harris On November 2, 2012, the Discovery Subcommittee reached consensus to forward a rule proposal to the Standing Committee, with a recommendation that it be published for public comment in August 2013.  This effort stems from work first started by the E-Discovery Panel at the Duke Conference in May 2010, and included a […] ... continue reading

October 25, 2012

‘Lackadaisical’ Litigation Holds by Federal Government Undermines Medicaid Fraud Case

By Brad Harris In a ruling that will have defense lawyers licking their chops, U.S. District Judge William P. Johnson on October 3 upheld U.S. Magistrate Alan C. Torgerson’s opinion when the Court unequivocally overruled objections regarding spoliation sanctions due to an inadequate litigation hold process. Department of Justice lawyers were attempting to overturn Judge […] ... continue reading

October 24, 2012

Scentsy v. B.R. Chase: Whiffs of Spoliation from Plaintiff in Idaho Case Causes Court to Take Action

By Brad Harris Earlier this month, Chief Judge B. Lynn Winmill (D.Idaho) issued a court order against Scentsy Inc., the plaintiff in a copyright infringement case between two scented candle makers, for failing to issue a litigation hold and inadequate retention policies. While the court determined that spoliation was unlikely, it took the matter seriously […] ... continue reading

October 01, 2012

Hynix v. Rambus: Rambus’s $397M Judgment to Be Lowered Due to Revised Consideration of Trigger Event

In what feels like the never-ending story, a new chapter on the long-running patent infringement case between Hynix and Rambus opened with a ruling by U.S. District Judge Ronald M. Whyte (N.D. Cal.) on September 21, 2012. The court’s latest opinion, following nearly 7 years after the original trial, is likely to reduce dramatically the […] ... continue reading

October 01, 2012

PREX12 Recap – The Four Overarching Themes That Emerged at the Conference on Preservation Excellence

The 2012 Conference on Preservation Excellence (PREX12) was held September 27-28 in Portland, Ore., and proved to be an event that raised the bar on data preservation. With more than 100 attendees, the level of dialogue and depth of discussion on litigation holds and data preservation was unprecedented. The goal of the conference and all […] ... continue reading

August 15, 2012

Conference on Preservation Excellence Adds Distinguished Judicial Panel

The 2012 Conference on Preservation Excellence announced today the addition of a judicial panel for a session called “The View from the Bench on Preservation.”  The session will feature the following judges: Hon. Paul S. Grewal, U.S. Magistrate Judge, U.S. District for the Northern District of California and who recently wrote Apple, Inc. v. Samsung […] ... continue reading

August 03, 2012

Apple v. Samsung: Lack of Custodian Follow-Up and Failure to Suspend Auto-Deletion of Email Equals Adverse Inference

The stakes could hardly be higher than the multi-billion dollar design patent trial between high tech titans Apple and Samsung – both are among the top 30 largest global companies. Apple’s iPhone invented the smart phone category and this suit alleges that Samsung copied the iPhone’s design in violation of its patents. With hundreds of […] ... continue reading

July 26, 2012

Conference on Preservation Excellence to Debut September 27-28, 2012 in Portland, Ore.

National e-discovery leaders and in-house practitioners gather for first conference to focus on legal preservation that will provide practical advice for reducing the burden of preservation The 2012 Conference on Preservation Excellence, the first conference focused exclusively on improving the legal preservation process, will be held September 27-28, 2012, in Portland, Oregon. The Conference’s goal […] ... continue reading

July 17, 2012

Chin v. Port Authority: Second Circuit Seemingly Rejects Pension Committee’s Standard for Gross Negligence. But Really It Doesn’t.

By Brad Harris The latest noteworthy decision regarding spoliation sanctions stemming from preservation failures emerged out of the Second Circuit Court of Appeals on July 10, 2012. In Chin v. Port Authority of New York New Jersey, a counter-claim by plaintiff Howard Chin sought a spoliation sanction of an adverse inference instruction due to the […] ... continue reading

July 11, 2012

eDiscovery Journal Looks at the Latest Trends in Legal Hold Management

E-Discovery Journal’s Mikki Tomlinson wrote about her recent experiences in overseeing a RFI process for a major corporate client. Her candor in “What’s Trending in Legal Hold Management?” from July 10 provides some timely insights into the current trends in legal hold technology based on the combination of an in-depth reviews of more than a […] ... continue reading

July 11, 2012

Motion for Spoliation Sanctions Falters When Plaintiff’s Wishful Thinking Doesn’t Become Reality

Our friend Josh Gilliland at Bow Tie Law recently recounted a ruling that offered a new twist on the motion for spoliation sanctions. In Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, (3d Cir. N.J. June 20, 2012) out of U.S. Court of Appeals, Third Circuit, the Plaintiff appealed a District Court’s denial of a […] ... continue reading

July 10, 2012

New Edition of Federal Judiciary Center Pocket Guide on E-Discovery Reflects Growing Focus on Preservation

The Federal Judiciary Center recently published the second edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges. This 48-page guide follows the first edition from 2007 and is a good measure of how preservation has evolved during the intervening five years. The fact that the Pocket Guide doubled in length owes to […] ... continue reading

July 10, 2012

Despite No Evidence of Spoliation, Court Orders Up to $70K in Sanctions for Preservation Failures Anyway

By Brad Harris A District Judge in New Jersey upheld the opinion of a Magistrate’s finding of sanctions on appeal in a liability case out of U.S. District of New Jersey – despite the fact that no evidence of spoliation was concretely found. We first learned about this from Scott Etish’s post at E-Discovery Law […] ... continue reading

May 30, 2012

E-Discovery Leaders Describe Challenges of Getting Preservation and Legal Holds Right

An all-star panel from the e-discovery world gathered at the New York City Bar Association on May 17, 2012, to discuss the challenges faced in different roles when it comes to issuing legal holds and managing preservation. The event, “Four Perspectives on Preservation and Proportionality,” was organized by Legal Hold Pro and featured U.S. Magistrate […] ... continue reading

May 29, 2012

Alabama Opinion Denies Motion for Spoliation Sanctions Due to Defendant’s ‘Good Faith’ Legal Hold Efforts

A recent opinion from the Middle District of Alabama (M.D. Ala.) demonstrates the importance of having a sound litigation hold process in place to avoid sanctions for failure to preserve electronic information. We first read about this case in A Spoliation Ace in the Hole which appears in Cozen O’Connor’s E-Discovery Law Review. In Danny […] ... continue reading

May 28, 2012

New York State Supreme Court Dismisses Case Due to Spoliation from Ineffective Litigation Hold Process

In a legal malpractice case dating back to 2008, a Plaintiff had a $20 million claim dismissed outright due to ESI lost resulting from a legal hold that was completely ineffective. In 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), which we […] ... continue reading

May 16, 2012

Zapproved Partners with Nuix to Launch Legal Hold Solution

Nuix, a worldwide provider of information management technologies, and Zapproved Inc., developers of Legal Hold Pro™, announced a technology partnership to introduce Nuix Legal Hold.  Nuix Legal Hold is a cloud-based legal hold notification and compliance tracking system that works with Nuix collection and eDiscovery solutions.  Nuix Legal Hold is built on Legal Hold Pro, […] ... continue reading

April 24, 2012

Pouncil v. Branch Law Firm – A Reminder that Law Firms Need to Get With the Times on Issuing Legal Holds

LeClairRyan’s Dennis Kiker posted on April 23 about a new opinion from U.S. Magistrate Judge David Waxse that illustrates the importance for law firms to have their preservation efforts in order (just like their clients). In Pouncil v. Branch Law Firm (Case No. 10-1314-JTM-DJW, D. Kan. Mar. 7, 2012), the law firm was involved in […] ... continue reading

April 24, 2012

Thin Guidance from JETWG on Preservation of Digital Evidence in Criminal Cases

To date almost every discussion surrounding preservation of electronic evidence has focused on civil cases, despite the routine use of digital evidence in criminal matters. The influential U.S. District Judge Shira A. Scheindlin and Jeffrey Rabkin published Criminal Law Catches Up: New ESI Guidelines Issued in the New York Law Journal which recaps the Recommendations for […] ... continue reading

April 17, 2012

Research Alert: Our Four Big Takeaways from RAND Study That Zeroes In On Preservation as a Major Pain Point

By Brad Harris The RAND Institute for Civil Justice (ICJ) published an interesting study last week focusing on the costs of electronic discovery in civil litigation. The 131-page report Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery offers some great insights into the costs of discovery, and perhaps more importantly, the current […] ... continue reading

March 29, 2012

Event Alert: Legal Hold Pro Presents ‘Four Perspectives on Preservation and Proportionality’ in New York on May 17 with Distinguished Panel

Four Perspectives on Preservation and Proportionality: The Judge, The GC, Plaintiffs’ Counsel and Defense Counsel Date:   Thursday, May 17 Time:  8:30 to 10:00 a.m. Location:  New York City Bar Association Building, 42 W. 44th St., New York, NY Cost:  Complimentary, but space is limited. Reservation required. CLE Credit:  Pending for NY PROGRAM OVERVIEW  Legal Hold Pro is […] ... continue reading

March 12, 2012

Three Lessons from Perez v. Vezer Industrial: 1) Legal Holds Are Necessary Regardless of Org. Size; 2) Don’t Inflate Your Costs; and 3) Don’t Let Satan Drive

In late 2011, an opinion out of the Eastern District of California reaffirms that even if a company is small, size cannot be an excuse for failing to issue a litigation hold to preserve electronic data.  The opinion by U.S. Magistrate Carolyn K. Delaney in Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. […] ... continue reading

February 21, 2012

New York Appeals Court Upholds Zubulake Legal Hold Standard in Voom v. EchoStar Resulting in Adverse Inference Instruction

Voom HD Holdings LLC v. EchoStar Satellite LLC, 2012 NY Slip Op 00658 (January 31, 2012) A unanimous opinion out of a New York state appellate court in the Voom v. EchoStar is the first case at this level to explicitly uphold the standards set forth by U.S. District Judge Shira Scheindlin in Zubulake and […] ... continue reading

February 15, 2012

New Study Points to Need for Change in How Government Agencies Manage E-Discovery

IE Discovery just published its 2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies and it seems like “times they are a-changin,’” to quote the inimitable Bob Dylan. In-house legal teams at the Federal level are starting to feel the same pain as their counterparts about the rigors of preservation and electronic discovery. This […] ... continue reading

February 08, 2012

LegalTech 2012: Don’t Take Your Eyes Off of the Preservation Ball (Or Four Reasons Why Predictive Coding Isn’t for Everyone)

Last week we celebrated the annual rite of passage that is LegalTech New York. By all accounts it was a successful year with record attendance, bustling Exhibit Halls and non-stop presentations. Leading up to the conference, Law Technology News wrote about the expected buzzwords which pointed to “predictive coding” (a.k.a. “technology assisted review”), “social discovery,” […] ... continue reading

February 08, 2012

Legal Hold Pro Adds Collection Tracking Capability to Enhance Your Preservation Workflow

We have exciting news! Legal Hold Pro can now initiate and track collection tasks associated with a legal hold. After notifying custodians of a duty to preserve, a legal team often needs to take additional steps such as suspending auto-deletion in an email archive or triggering a data collection. With this new capability, Legal Hold […] ... continue reading

February 08, 2012

Legal Hold Pro Introduces Law Firm Advantage Edition that Provides New Way to Collaborate with Clients on Preservation Efforts

Last week at LegalTech NY, we introduced a set of new features so law firms can work with clients to deploy the fastest growing legal hold notification and compliance tracking system. Since Legal Hold Pro is web-based, law firms can immediately utilize the tool with clients without the need to install, configure or maintain software. […] ... continue reading

February 08, 2012

Zapproved Appoints Hon. Robert J. Cindrich (Ret.) to Board of Directors

We are proud to announce that  our Board of Directors has voted to appoint Hon. Robert J. Cindrich (Ret.) to the Board. Cindrich served as a Federal judge in the U.S. District Court for Western Pennsylvania for 10 years and currently serves as Senior Advisor to the Office of the President at the University of […] ... continue reading

January 26, 2012

Come See What’s New with Legal Hold Pro at LegalTech from Jan. 30 to Feb. 1

LegalTech is right around the corner with the show kicking off on Monday, January 30, and continuing through Wednesday, February 1, at the Hilton New York. Legal Hold Pro will be  exhibiting and rolling out some exciting new enhancements to our industry leading legal hold management system. If you are planning to attend, come see […] ... continue reading

December 16, 2011

Georgetown 2011 Recap: Three Takeaways on Preservation

We were honored once again to sponsor the Georgetown Law Center 8th Annual Advanced eDiscovery Institute which took place November 17-18 in Pentagon City, VA. This conference is an annual highlight because of the outstanding quality of the panels, which include many of the country’s most influential jurists.  We were also pleased to have contributed […] ... continue reading

December 16, 2011

Subsequent Briefs in Pippins v. KPMG Provide Further Insights into Dispute Over Hard Drive Preservation

By Brad Harris In our recently published white paper, Preservation and Proportionality, Ron Hedges and I solicited input from industry thought leaders on the current debate over the rising costs of data preservation and the call for proportionality through cooperation, court order or rule changes.  A particularly relevant opinion was issued from the Southern District […] ... continue reading

December 12, 2011

NACCO v. Lilly: Spoliation Sanctions in Tennessee Case Shows Ongoing Challenge of Preservation

By Brad Harris We just learned of another preservation case involving sanctions but what makes this one stand out is that the litigation started in 2011 – after Pension Committee, Rimkus, Victor Stanley II, and the other opinions showing the courts’ focus on preservation issues. This case out of the Western District of Tennessee, which […] ... continue reading

November 16, 2011

Just Published! ‘Preservation and Proportionality’ Solicits Opinions on How to Handle Preservation in the Post-Pension Committee World

Today we are announcing the publication of “Preservation and Proportionality: Perspectives on Lowering the Burden of Preserving Data in Civil Litigation,” a 36-page white paper that offers a comprehensive resource in the ongoing discussion around best practices for data preservation. “Preservation and Proportionality” is edited by our Brad Harris and Ron Hedges, a former United […] ... continue reading

October 17, 2011

New S.D.N.Y. Ruling in Pippins v. KPMG Focuses on Proportionality in Preservation

By Brad Harris Pippins v KPMG, 2011 WL 4701849 (S.D.N.Y.) October 7, 2011 U.S. Magistrate Judge James L. Cott from the influential Southern District of New York (S.D.N.Y.) released an interesting opinion in early October that reflects on an emerging question: Should the principles of proportionality as articulated in FRCP Rule 26(b)(2)(c) apply to a […] ... continue reading

October 07, 2011

New Jersey Company Found Grossly Negligent for Inadequate Legal Hold

N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., September 21, 2011) On September 21, 2011, a new ruling out of New Jersey highlighted the intolerance of the courts for improperly implemented litigation holds.  In N.V.E. v. Palmeroni,  U.S. District Judge Esther Salas imposed monetary […] ... continue reading

October 06, 2011

Four Takeaways from the Dallas Mini-Conference on Preservation and Sanctions

By Brad Harris Last month, the Advisory Committee on Civil Rules called together a mini-conference to solicit greater insight in the nature and scope of the preservation problem, including how technology is contributing to the issue and how rule changes might help address the problem. Held under the auspices of the Discovery Subcommittee, the Mini-Conference […] ... continue reading

August 24, 2011

Webinar: “Partners in Preservation: How Law Firms Can Help Clients Avoid E-discovery Sanctions” on Sept. 20

REGISTER NOW! Over the last 18 months, data preservation for discovery has been in the spotlight like never before. One important aspect is the emphasis that several courts have are put on the obligation of outside counsel to oversee the preservation process. Many counsel are now taking a much more active role to help ensure […] ... continue reading

August 24, 2011

Webinar: “Data Preservation and Legal Holds: Best Practices and New Technology” on Sept. 13

REGISTER NOW! It has been nearly eight years since Judge Shira Scheindlin issued the Zubulake opinions that set the course for modern eDiscovery. Last year, she issued her notable Pension Committee ruling that reinforced considerations for reasonable and good faith expectations when responding to a duty to preserve, which set off a chain reaction of other […] ... continue reading

August 19, 2011

Legal Holds Feature in Gibson Dunn’s 2011 Mid-Year E-Discovery Report

Since the law firm Gibson Dunn started covering electronic discovery rulings in its twice-per-year reports, they have become a “go to” resource for practitioners.  The team at Gibson Dunn recaps notable cases and organizes the report so that key trends are highlighted and they recently released the 2011 Mid-Year E-Discovery Report. In the first half […] ... continue reading

August 16, 2011

The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation after Issuing Weak Legal Hold

by Brad Harris In July, we posted about the DuPont v. Kolon opinion in April which was noteworthy in that DuPont escaped any sanctions in spite of spoliation by having a strong preservation plan in place.  The Eastern District of Virginia’s Senior District Judge Robert E. Payne issued a subsequent ruling on July 21 responding […] ... continue reading

July 28, 2011

Webinar: “Data Preservation 2011 – Looking at How Your Company Can Be State-of-the-Art” on August 3rd

Register Here:   https://www2.gotomeeting.com/register/368826627 TERIS and Legal Hold Pro present a one-hour seminar on optimizing legal preservation in 2011 when the courts’ expectations have never been higher and e-discovery practices are being scrutinized by opposing counsel.  New opinions such as Haraburda v. Arcelor Mittal, Dupont v. Kolon and Green v. Blitz USA are continuing to put the spotlight on what companies should and shouldn’t […] ... continue reading

July 18, 2011

Haraburda v. Arcelor Mittal: Court Orders Litigation Hold After Defendant Attempts to Delay Until after ‘Meet and Confer’

Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) An opinion in late June from the Northern District of Indiana firmly reiterated the need for a legal hold and shot down one litigant’s attempts to postpone its timing until after the Rule 26(f) meeting.  That strategy […] ... continue reading

July 12, 2011

DuPont v. Kolon: DuPont Avoids Sanctions by Maintaining Legal Hold Practices

8/16 UPDATE: See subsequent blog post: The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation After Issuing Weak Legal Hold (8/16/2011) E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. LEXIS 45888 (E.D. Va. Apr. 27, 2011) In an opinion from late April, Sr. […] ... continue reading

June 19, 2011

Webinar: “A Compelling Need for Change in Legal Hold Practices” with Charlotte Riser Harris and Brad Harris

Charlotte Riser Harris, Litigation Support Manager for Hess Corporation, and Brad Harris, leading national  preservation expert and VP for Legal Products at Zapproved (no relation to Charlotte), team up for a one-hour webinar designed to help in-house legal teams adapt to the latest preservation standards. The content is adapted from their co-authored article that appeared in […] ... continue reading

June 07, 2011

Some Say Courts Don’t Agree with Pension Committee – But Is That Really the Case?

By Brad Harris The preservation landscape appears to be settling down considerably compared to the turbulent year that was 2010. (If you need a refresher, see Pension Committee Revisited white paper and webinar for a complete recap.) A few opinions have come up in recent months that provide additional insight into how the courts are […] ... continue reading

April 14, 2011

National Law Journal: “Until Next Rules Change, 2010 Cases Set the Standard” by Brad Harris and Ron Hedges

On the heels of their successful Pension Committee Revisited project, our own Brad Harris and Ron Hedges collaborated once again on a contributed article that appears in the April 11 edition of the National Law Journal.  The article, “Until Next Rules Change, 2010 Cases Set the Standard,” examines the state of preservation today based on recent […] ... continue reading

April 04, 2011

Two Cases Feature Extreme Sanctions for Preservation Failures; Both Cite a Failure to Issue a Legal Hold as Key Factor

By Brad Harris Since Judge Francis’s Orbit One in October 2010, we haven’t read a lot about preservation issues. But that ended suddenly with two opinions that had come to light in recent weeks. If the building case law has not been convincing enough, then take note of these sanctions that turn up the heat […] ... continue reading

March 27, 2011

‘Legal Holds and Healthcare’ Webinar on March 30 with National Experts Brad Harris and Ken Rashbaum

Leading national experts Brad Harris and Ken Rashbaum present a one-hour program that will help any legal practitioner working in the healthcare industry. The presentation will review recent case law and its impact on preservation, look at trends in the healthcare sector and what they mean. Harris and Rashbaum then will provide recommendations for ‘best practices’ so that you will be ready when the […] ... continue reading

March 08, 2011

“Pension Committee Revisited: Where Do We Go From Here?” Webinar Features 10 E-Discovery Leaders on March 22

  “Pension Committee Revisited: Where Do We Go From Here?” is a complimentary two-hour program hosted by Brad Harris, VP for Legal Products at Zapproved, and former U.S. Magistrate Judge Ron Hedges. The program brings together a group of the best minds in electronic discovery to discuss the impact of Pension Committee one year later. The panel […] ... continue reading

February 18, 2011

Legal Hold Pro Meets the Press – February 2011 Edition

Since we have been enjoying a little attention from the press recently, we are posting a few items that have appeared during the last two weeks.  We hope you find them interesting! Pension Committee: Looking Back at a Look Back, LTN, February 15, 2011 – ALM’s editorial director for technology David Snow provides his thoughts […] ... continue reading

January 18, 2011

Just Published! “Pension Committee Revisited” edited by Brad Harris and Ron Hedges

We are proud to announce the publication of Pension Committee Revisited: One Year Later, a 42-page white paper published to mark the one-year anniversary since Judge Shira A. Scheindlin issued her landmark opinion. Pension Committee has focused the legal community on issues surrounding the preservation of electronic data involved with litigation. “Pension Committee Revisited” is edited by […] ... continue reading

December 06, 2010

Orbit One v. Numerex: Magistrate Judge Francis Offers His View on Legal Holds

By Brad Harris Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y., Oct. 26, 2010) In late October, Magistrate Judge James Francis issued an opinion that has continued the judicial debate about legal holds and other preservation practices kicked off in January 2010 with Pension Committee. Judge Francis in Orbit One openly disagrees […] ... continue reading

November 19, 2010

Rush Transcript: Judge Scheindlin Defends Pension Committee by Saying “Just Do It!” to Legal Holds

The Georgetown Law Center’s Advanced E-Discovery Institute is a highlight on the calendar every year.  The conference kicked off yesterday (Nov. 18) at the Ritz-Carlton in Pentagon City, VA, with an e-discovery case law update that involved a panel of many preeminent jurists.  The panel was moderated by The Sedona Conference’s Ken Withers and included […] ... continue reading

October 18, 2010

New “General Counsel Survey” Shows Growing Legal Hold Gap

The University of Denver’s Institute for the Advancement of the American Legal System (IAALS) recently published the results of an extensive survey it conducted with GCs around the country.  The sample size is impressive which gives weight to the survey with 485 valid responses by ACC members with titles of General Counsel or Chief Legal […] ... continue reading

September 30, 2010

Harris and Ball Present “The Enlightened Legal Hold” Webinar on October 12

This complimentary one-hour program is presented by leading e-discovery experts Brad Harris and Craig Ball. They will offer a fresh approach to legal holds following the Pension Committee opinion which they first outlined in the white paper that they co-authored which you can download at www.legalholdpro.com/enlightened. Harris and Ball will examine the “Five Deadly Sins of Legal Holds” that […] ... continue reading

September 16, 2010

The Sedona Conference Publishes Updated Legal Hold Commentary

by Brad Harris This week The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) issued an updated Commentary on Legal Holds, reflecting evolving case law and best practices since 2007.  The document remains an exemplary resource for practitioners charged with determining when a legal obligation to preserve data arises (the “trigger”) and […] ... continue reading

September 13, 2010

Victor Stanley II: Judge Grimm’s Review of the State of Preservation

by Brad Harris On Thursday, September 9, 2010, Judge Paul Grimm of the U.S. Fourth Circuit (D.MD) continuedthe 2010 tradition of huge opinions with his 89-pager about the ongoing spoliation saga in Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010). Craig Ball was the first to get the word out […] ... continue reading

August 24, 2010

“The Enlightened Legal Hold” by Brad Harris and Craig Ball Is Published Today!

We are proud to announce that “The Enlightened Legal Hold: A New Approach to Legal Preservation Following the Pension Committee Opinion” co-authored by Brad Harris and Craig Ball was published today. The latest white paper in the Legal Hold Pro™ Signature Series examines issues that have caused problems for litigants and offers a new way […] ... continue reading

August 20, 2010

Trendspotting in Legal Holds, Part 2 – The 2010 Socha-Gelbmann Electronic Discovery Survey

This is the second part of our look at two major reports on the electronic discovery sector that were released within the last month. You can read Part 1 about the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update that was posted Tuesday. Today we analyze The 2010 Socha-Gelbmann Electronic Discovery Survey […] ... continue reading

August 17, 2010

Trendspotting in Legal Holds, Part 1 – Gibson Dunn Mid-Year E-Discovery Update

Two major reports on the electronic discovery sector were released within the last month.  The first is the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update in mid-July followed by The 2010 Socha-Gelbmann Electronic Discovery Survey at the beginning of August. It is interesting to see in both reports – of case […] ... continue reading

August 13, 2010

‘Small Corporation’ Gets $10,000 Sanction for Spoliation Resulting from Lack of Written Hold

By Brad Harris Passlogix, Inc.v.2FA Technology LLC, et al., 2010 WL 1702216 (S.D.N.Y., April 27, 2010) An interesting case appeared from New York’s Southern District that saw some egregious behavior by the defendant to purposefully undermine the discovery process. In fact, the court characterized the defendant’s outrageous tactics were undertaken “in an effort to expand discovery, […] ... continue reading

July 02, 2010

Coming Soon to Silicon Valley! “Hold Fast” CLE on July 15th

You are invited to join D4 and Legal Hold Pro for a complimentary lunch program and earn 1.0 MCLE credit approved by the California State Bar Association. Thursday, July 15, 2010 Four Seasons Hotel Silicon Valley 2050 University Avenue East Palo Alto, CA Registration at 11:30 a.m. with lunch being served at 12:00 p.m. Space […] ... continue reading

June 10, 2010

Northern District of Illinois Makes Its Own Way with Opinion Echoing Need for Strong Legal Holds

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) By Brad Harris On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the […] ... continue reading

June 03, 2010

Judge Scheindlin Gives Pension Committee a Minor Tune-Up

By Brad Harris For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a […] ... continue reading

May 26, 2010

“D&O Litigation Landmine: Legal Holds” Webinar on June 3

Spoliation is a scary word; the consequences for directors and officers are even scarier.  No longer will judges give companies a “free pass” for failing to properly implement a litigation hold in the face of reasonably anticipated litigation or government investigation.  A slew of recent cases shows just how devastating an improperly designed or executed litigation […] ... continue reading

May 07, 2010

The Drumbeat Continues: Judge Turns Up the Heat with $25,000 Sanction

By Brad Harris Merck Eprova AG v. Gnosis S.p.A. et al., 07 Civ. 5898 (S.D.N.Y. Apr. 20, 2010) On April 20, 2010, U.S. District Judge Richard Sullivan hammered home the need for proper legal holds in a big way.  In a case that not only echoes Judge Scheindlin’s Pension Committee opinion, but takes it a […] ... continue reading

April 27, 2010

Second Verse Same as the First: Failure to Issue a Legal Hold is Gross Negligence

By Brad Harris Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010) Our friend Josh Gilliland of the Bow Tie Law blog posted last week about an important case out of the Western District of New York involving litigation holds.  (I highly recommend that you check out Josh’s entertaining […] ... continue reading

April 13, 2010

TechnoLawyer Review: Legal Hold Pro Earns 4.8 Rating (Out of 5)

Our first official product review was published today and we couldn’t be more pleased!  TechnoLawyer, a popular legal technology and practice management resource that consists of a network of free, critically-acclaimed e-mail newsletters, published an in-depth review of Legal Hold Pro written by Bruce Olson, President of ONLAW Trial Technologies. The article provides a detailed […] ... continue reading

February 25, 2010

Rimkus v. Cammarata: Another Great Reason Organizations Need an Effective Legal Hold Process

By Brad Harris Coming on the heels of Judge Shira Scheindlin’s Pension Committee v. Banc of America Securities opinion in January, a opinion was issued that centers around appropriate actions to preserve potentially relevant evidence.  The case is Rimkus Consulting Group Inc. v. Nickie G. Cammarata, et al., 07-cv-00405 (SDTX Feb. 19, 2010) out of […] ... continue reading

February 24, 2010

“Arkfeld on Legal Holds” Webinar on Feb. 26th

D4, LLC and Legal Hold Pro present a one-hour program featuring Michael Arkfeld, Esq., author of Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of U.S. District Judge Shira Scheindlin’s recent Pension Committee v. Banc of America Securities opinion. The webinar […] ... continue reading

February 19, 2010

2010 – The Year of the Legal Hold

We were excited about attending LegalTech earlier this month, but nothing could have prepared us for the response we received. Legal Hold Pro built a buzz as evidenced by comments from industry analyst Brian Babineau of ESG said “the best vendor/solution I saw at LegalTech was Legal Hold Pro… It’s a no-brainer for companies!!” In […] ... continue reading

February 11, 2010

Corporate Counsel: “How Companies Have to Handle Legal Holds”

Brad Harris, our Director of Legal Products, and John Jablonski, Partner at Goldberg Segalla and legal hold expert, today published a by-lined article on Corporate Counsel magazine’s web site.  The article offers advice to in-house legal teams about the implications of Judge Scheindlin’s recent Pension Committee opinion. Brad and John offer timely information that analyzes […] ... continue reading

February 05, 2010

Legal Hold Pro Called the “Best Vendor/Solution” at LegalTech 2010

Our team just returned from LegalTech New York after an exhilarating week in which we were able to make a big splash about Legal Hold Pro to the legal industry.  We believe we have the right solution — namely a cloud-based legal hold management system — at the right time. Brian Babineau, a Senior Analyst […] ... continue reading

February 04, 2010

Just Published! An in-depth analysis of Judge Scheindlin’s Pension Committee Opinion

“The analysis of Judge Scheindlin’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to […] ... continue reading

January 19, 2010

“12 Myths about Legal Holds” Webinar on January 26 covers Zubulake to Judge Scheindlin’s Latest Opinion

Program Overview: The one-hour program will examine common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion. John Jablonski and Brad Harris will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it […] ... continue reading

January 14, 2010

FLASH UPDATE! Judge Scheindlin Strongly Reiterates Need for Written Hold Notification

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 11, 2010) Starting with the intro of her opinion, Judge Scheindlin invokes Santayana’s famous saying that “those who cannot remember the past are condemned to repeat it.”  This ominous start is […] ... continue reading

January 11, 2010

“12 Myths about Legal Holds” Is Now Available!

Today we released a new white paper titled “12 Myths about Legal Holds” authored by Brad Harris, the company’s new Director of Legal Products.  The first paper in the Legal Hold Pro™ Signature Series is available immediately at no cost at www.legalholdpro.com/myths. The 12-page publication zeroes in on common misconceptions about litigation holds that are […] ... continue reading

December 03, 2009

If You Don’t Issue a Hold, Now the Court May Do It for You

Synventive Molding Solutions v. Husky Injection Molding Systems, 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009) A recent case out of the U.S. District Court of Vermont may be the next seminal case for legal holds as the judge  clarified several ambiguous points around legal holds.  Judge Conroy’s opinion and order for Synventive […] ... continue reading

December 03, 2009

Florida Court Sanctions In-house Counsel for Spoliation Resulting from Poor Legal Hold

Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009) This case started under confusing circumstances which resulted in Robert Swofford being shot seven times in his home by sheriff’s deputies in Orlando. After he recovered, he sued the sheriff’s office for negligence. Now, David Lane, the GC for the Seminole County Sheriffs Office is taking […] ... continue reading

August 18, 2009

Legal Hold Pro Alert: Pinstripe v. Manpower, Major Tours v. Colorel

A pair of recent rulings have shed additional light on the need for a strong, defensible legal hold implementation.  The two cases illustrate how the courts are intolerant when defendants are ignorant of the legal hold process: Pinstripe, Inc. v. Manpower, Inc. (7/29/09) – An un-issued legal hold and “good faith” efforts still yield sanction. […] ... continue reading

September 02, 2014

Clarifying the Law of the Land for Preservation in the Sixth Circuit

Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 WL 2869286 (6th Cir. June 25, 2014) The case arose from a contract involving the development of delivery- and subscription-tracking software for the Chicago Tribune. The relationship between the parties deteriorated, and the defendant Paragon terminated the contract. The plaintiff, Automated Solutions Corp. (ASC), […] ... continue reading

August 21, 2014

Zapproved Is No. 289 on the 2014 Inc. 500 List of Fastest-Growing U.S. Private Companies

Inc. magazine ranked Zapproved No. 289 on its 33rd annual Inc. 500|5000, an exclusive ranking of the nation’s fastest-growing private companies. Zapproved also ranked No. 24 in the category of fastest growing software companies in the nation, ranked No. 5 on the list of Oregon’s top growing private companies and No. 4 on the Portland […] ... continue reading

August 13, 2014

Zapproved Predicts Reaching the Tipping Point for Automated Data Preservation By 2015

Second Annual Survey Reveals Trends Towards Automating Data Preservation and the Risks and Concerns Facing Legal Professionals The 2014 Legal Hold and Data Preservation Benchmark Survey, the largest survey conducted in the area of electronic discovery, identifies several key findings that show a significant shift toward more automation in litigation holds resulting in higher confidence […] ... continue reading

July 30, 2014

Texas Supreme Court Overturns Case Based on Spoliation Instruction to Jury

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) On July 3, the Supreme Court of Texas issued a significant opinion in clarifying appropriate sanctions for spoliation. The ruling removes discretion of trial judges to administer sanctions by only permitting jury instructions when the spoliation was intentional or deprived opposing party […] ... continue reading

July 24, 2014

What Is the Extent of Counsel’s Obligation to Ensure Clients Preserve Data?

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13cv825 (E.D. Va. 2014) Spoliate once, shame on the client; however, spoliate two or more times, shame on the client’s counsel. At least, that seems to be the likely outcome of a dispute over attorneys’ fees and costs currently pending before the Eastern District of Virginia. In […] ... continue reading

July 24, 2014

Discovery Cannot “Go Smoothly” When Counsel Do Not Exercise Proper Oversight Into Preservation

Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014) To put it mildly, “[d]iscovery did not go smoothly” in Brown v. Tellermate Holdings Ltd., an age discrimination case stemming from the termination of the plaintiffs’ employment. According to the court, “significant problems arose in this case for […] ... continue reading

July 24, 2014

Company That Failed to Issue Litigation Hold for Three Years Suffers Adverse Inference

Osberg v. Foot Locker, No. 07-cv-1358 (KBF), 2014 U.S. Dist. LEXIS 95543 (S.D.N.Y. July 14, 2014) In Osberg v. Foot Locker, an ERISA matter, the plaintiffs filed a motion seeking sanctions for spoliation alleging that the defendants had destroyed documents. Despite several pending lawsuits involving similar issues against the defendants that were filed as early […] ... continue reading

June 04, 2014

A Party’s Failure to Preserve Invites Judicial Intervention

A magistrate judge recently ordered intrusive measures to rectify a plaintiff’s inadequate, self-directed search for ESI in Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014). The deficiencies included the following: failure of plaintiff’s counsel to travel to Colombia to meet with the client’s IT personnel about the relevant […] ... continue reading

June 04, 2014

A Cautionary Tale About E-Discovery Sanctions

When one defendant turned against the others in Pacific Packaging Products, Inc. v. Barenboim, No. 09-4320, Mass. Super. Ct., a Massachusetts Superior Court judge turned against all of them. Judge Bruce Henry ordered default judgments, dismissed counterclaims, and ordered the payment of attorneys’ fees upon discovering the defendants in this trade secrets case had committed […] ... continue reading

May 20, 2014

Event Notice — Upcoming PREX Symposiums and User Group Meetings in Palo Alto and Chicago

Please join us for these outstanding events that are coming up in early June 2014! June 5 — Silicon Valley Symposium on Preservation Excellence Date:       Thursday, June 5, 2014 Agenda:  4:00 p.m. – Symposium: “Data Preservation in the Age of Social Media” 5:30 p.m.  – Complimentary Happy Hour Cost:         […] ... continue reading

May 08, 2014

Texas Judge Orders Adverse Inference Sanction for ‘Staggering’ Loss of Evidence

Quantlab Techs. Ltd. v. Godlevsky, No. No. 4:09-cv-4039, 2014 U.S. Dist. LEXIS 20305 (S.D. Tex. Feb. 19, 2014) The court determined that an adverse inference instruction was the appropriate remedy for the loss of a “staggering amount of evidence potentially relevant to this case,” id. at *82, even though the plaintiffs could not adduce evidence […] ... continue reading

May 08, 2014

Spoliation Four Ways: Washington Court Orders $25,000 and Attorneys’ Fees and Costs

Knickerbocker v. Corinthian Colleges, No. C12-1142JLR (W.D. Wash. Apr. 7, 2014) In this employment law case, the court found “clear and convincing evidence” that the defendant and its counsel “have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith.” Sanctions were necessary to remedy their […] ... continue reading

April 14, 2014

Last-Minute Revision Brings Forth Streamlined Proposal for Rule 37(e) at Advisory Committee Meeting

On April 10-11 2014,  the Advisory Committee on Civil Rules chaired by U.S. District Judge David Campbell (D. Ariz.) convened at Lewis & Clark College in Portland, Ore., to consider final proposals to amend the Federal Rules of Civil Procedure. While not final, this was the culmination of an effort that kicked off in 2009 and […] ... continue reading

April 02, 2014

Legal Hold Pro Voted ‘Best of The National Law Journal 2014′

Legal Hold Pro is proud to announce that we have been voted the best over our competitors in the 2014 The Best of The National Law Journal Readers Rankings for legal hold solutions. Nearly 6,500 legal professionals cast votes for over 465 of their favorite vendors in 94 categories. The winners were announced on March 31. Click […] ... continue reading

March 12, 2014

Pharmaceutical Company Faces Setback from Sanctions for ‘Bad Faith’ Spoliation in Huge Product Liability Case

A 2,600-member class action lawsuit took a damaging turn on the eve of a critical bellwether trial when a judge ruled that the pharmaceutical company disregarded a litigation hold resulting in the loss of critical communications about the drug in question. The trial stemmed from allegations that using Actos® from Takeda Pharmaceutical could result in […] ... continue reading

March 12, 2014

Judge Refuses to Vacate Spoliation Sanctions in Intellectual Property Dispute – Even After Case Settles

A U.S. Magistrate in the Eastern District of Virginia took the extraordinary step of handwriting the denial of a motion by the parties to have spoliation sanctions vacated in Digital Vending Services International LLC v. The University of Phoenix Inc. et al., No. 2:09-cv-00555, E.D.Va. This could mark a new threshold in the courts of not […] ... continue reading

January 31, 2014

Court Fines Defendants $931,500 in Pradaxa Class Action After Repeated Failures to Implement Legal Holds

The class action product liability case against Boehringer Ingelheim Pharmaceuticals Inc., or BIPI, regarding the blood thinning drug sold as Pradaxa took a stunning turn with December 9, 2013 opinion by Chief Judge David R. Herndon of the Southern District of Illinois. In the blistering opinion the Court cited failure after failure, including misrepresentation of […] ... continue reading

January 31, 2014

Selective Preservation of Text Messages Uncovered with an Undisclosed Subpoena that Is Allowed to Impeach Evidence; Adverse Inference Sanction Results

The January 16, 2014 opinion in Calderon v. Corporacion Puertorique a de Salud from the District of Puerto Rico showed that selective preservation (or selective spoliation, depending on one’s perspective) is unwise, but also an undisclosed subpoena can be used as long it is used solely for impeachment purposes. District Judge Francisco A. Besosa found […] ... continue reading

January 31, 2014

Collections Tracking in Legal Hold Pro Provides Real-time Intelligence Across the Entire Preservation Process

We introduced today the new Collections Tracking module in Legal Hold Pro™, the industry’s fastest growing legal hold management software. With Collections Tracking, in-house legal teams will have a powerful tool for directing and overseeing both the preservation and collection of potentially responsive electronically stored information. Once custodians have been notified of a preservation obligation, […] ... continue reading

December 18, 2013

Top 10 Legal Hold and Data Preservation Opinions of 2013

In our second annual recap, we are looking back at the year that was in, terms of opinions, centered on legal holds and data preservation. Any expectation that the number of cases would subside fell by the wayside early in 2013 with a number of opinions in the first quarter and the pace has not […] ... continue reading

December 11, 2013

Calif. Magistrate Judge Recommends Adverse Inference Sanction for Failure to Issue Legal Hold Despite ‘Saved Everything’ Defense

On November 25, 2013, U.S. Magistrate Judge William V. Gallo of the Southern District of California issued an order in a patent infringement suit in which he granted an adverse inference and monetary sanctions for spoliation sanctions deemed “grossly negligent.” The ruling in Zest IP Holdings, LLC v. Implant Direct Mfg., LLC (S.D. Cal., Civil […] ... continue reading

December 11, 2013

Puerto Rico Magistrate Judge Denies Adverse Inference Motion Absent of Prejudice for Spoliation of Executives’ Personal Email

The plaintiff in a commercial litigation between two telecom providers in Puerto Rico brought a motion for an adverse inference sanction when it learned that relevant personal emails of the defendant’s executives were not preserved. The court denied the motion citing the defendants’ preservation efforts including a timely litigation hold, willingness to recover lost emails, […] ... continue reading

November 26, 2013

Legal Hold Pro Wins ‘Best of Legal Times 2013′

Legal Hold Pro is proud to announce that our software has been voted the best legal hold solution over our competitors in the 2013 The Best of Legal Times annual readers’ poll. The awards for 90 different categories were announced on November 25 and will be distributed in a special print supplement to The National Law […] ... continue reading

November 01, 2013

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold

A U.S. Magistrate Judge Robert M. Levy in the Eastern District of New York ordered an adverse inference sanction and payment of attorneys’ fees for the plaintiff in a case due to spoliation of evidence after the court learned that no litigation hold was issued. The court deemed the plaintiff’s actions to constitute gross negligence […] ... continue reading

November 01, 2013

Massive Product Liability Tort Not Derailed by Spoliation Claim Due to Rule 37 ‘Safe Harbor’

In what is being characterized as one of the largest mass civil lawsuits, defendant Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) avoided sanctions due to the destruction of a key custodian’s email because it occurred prior to the trigger and in accordance with the company’s document retention policy. Chief Judge David R. Herndon provided a thorough analysis […] ... continue reading

September 26, 2013

PREX13 Recap – Leading E-Discovery Experts and Federal Judges Focus Recent Case Law, Rules Amendments, International Preservation and BYOD

The second annual Conference on Preservation Excellence (PREX13) was held September 18-19 in Portland, Oregon.  Attended by over 130 participants, the 2013 conference again drew praise by focusing on the importance of sound data preservation and best practices.  The goal for PREX each year is to bring some of the best minds in e-discovery together […] ... continue reading

September 26, 2013

Kansas Federal Court Finds No Prejudice as Grounds for Denying Spoliations Sanctions

A Magistrate Judge in Kansas recommended that since the plaintiff could not show prejudice from the defendants’ spoliation of ESI that the motion for an adverse inference be denied in Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013). The recommendation, which was adopted in full by the presiding […] ... continue reading

September 06, 2013

Just Published! Legal Hold and Data Preservation Benchmark Survey Finds Majority Are Still in ‘Adolescence’ of Preservation Process Maturity

We just published the landmark Legal Hold and Data Preservation Benchmark Survey 2013. Conducted by the Steinberg Group LLC, the survey measured the prevailing attitudes of 525 professionals who currently oversee legal hold processes, making it the largest study of its kind focused specifically on how organizations are currently handling legal data preservation. Some key findings […] ... continue reading

August 29, 2013

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs […] ... continue reading

August 29, 2013

Northern District of California Opinion Shows Judicial Restraint When Duty to Preserve Is Deemed ‘Not ‘Limitless’

By reading recent case law, it seems that there is no spoliation small enough for which a party will not file a motion for an adverse inference sanction. In AMC Technology, LLC  v. Cisco Systems, Inc., No.: 11-cv-3403 P, 2013 U.S. Dist. LEXIS 101372 (N.D. Cal. July 15, 2013), one such motion was denied when […] ... continue reading

July 28, 2013

Cox Communications Avoids Adverse Inference for Spoliation in Consumer Suit Due to Lack of Proof of Prejudice

In recent weeks there has been a spate of opinions weighing spoliation sanctions (i.e., Sekisui v. Hart, PTSI v. Haley) in which adverse inference instructions are specifically sought. Add Cottle-Banks v. Cox Communications, Inc., No. 10cv2133-GPC(WVG), 2013 U.S. Dist. LEXIS 72070 (S.D. Cal. May 21, 2013) to that list. The result handed down by U.S. […] ... continue reading

July 28, 2013

Slate of Proposed FRCP Amendments Approved for Public Comment on June 3

On June 3, 2013, the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure voted to approve the proposed amendments to the FRCP for public comment, a key step on their path toward adoption. As Law Technology News reported on June 6, 2013 in “Proposed Discovery Amendments Move to Public Comment:” […] ... continue reading

July 28, 2013

Colorado Court Deems Loss of ‘Key Player’s’ Evidence a Sanctionable Offense in Hart v. Dillon

A U.S. Magistrate Judge in Colorado found that the failure to preserve a recording by a key player after the duty to preserve attaches to be grossly negligent or willful behavior. As a result of this ruling, U.S. Magistrate David L. West (D. Col.) granted a motion for sanctions which are yet to be determined […] ... continue reading

July 28, 2013

Without Evidence of Prejudice, S.D.N.Y. Court Denies Sanctions Despite Spoliation of Evidence in Sekisui v. Hart

An opinion by U.S. Magistrate Frank Maas in the U.S. Southern District of New York may be a harbinger of how courts will evaluate spoliation cases in the coming years. In this case, whereas the plaintiff was found to be negligent with respect to actions to preserve relevant data, Judge Maas concluded the defendants failed […] ... continue reading

June 25, 2013

Proposed Rules Changes Seek to Standardize Sanctions for Spoliation

For those watching trends in electronic discovery, the debate about proposed amendments to the Federal Rules of Civil Procedure to address concerns over the rising costs of preservation and risk of spoliation sanctions have been under discussion for more than two years. The United States Courts’ Advisory Committee on Federal Rules has held numerous meetings […] ... continue reading

June 25, 2013

Solid Preservation Policy Turns Back Defendants’ Motion for Sanctions in New York

Not every spoliation motion results in sanctions, as was the case in Research Foundation of State Univ. of New York v. Nektar Therapeutics (N.D.N.Y. May 15, 2013).  In his opinion addressing several motions in the patent licensing dispute, Chief Judge Gary L. Sharpe denied Nektar’s motion seeking an adverse inference instruction and monetary sanctions “on […] ... continue reading

June 24, 2013

E-Discovery Experts Gather Last Week in Houston to Drill Into Preservation Challenges

This past week, we held another highly successful Mini-Conference on Preservation Excellence on June 19 in Houston, Texas (PREX-TX).  The half-day session focused on industry trends and best practices when it comes to data preservation and legal holds, and was led by two outstanding CLE program moderators, the Hon. Ron Hedges (former U.S. Magistrate Judge […] ... continue reading

June 24, 2013

Illinois District Court Hands Down Adverse Inference Sanction for Failure to Suspend Automatic Deletion of Data in ‘Bad Faith’

By Brad Harris On May 22, 2013, U.S. District Judge Joan H. Lekfow issued an opinion in Pillay v. Millard Refrigerated Services Inc. citing preservation failures done in bad faith as the court’s reasoning for granting a motion for an adverse inference instruction. The outcome reflects a number of recent cases nationwide including Kirgan v. […] ... continue reading

May 22, 2013

Kirgan v. FCA LLC – Rule 1: Preserve ESI When Litigation is Forthcoming. Rule 2: Don’t Mislead When Breaking Rule 1, or Sanctions Will Follow

In one of the more flagrant violations of the obligation to preserve, an employment case from Illinois is a clear illustration what is not a “culture of compliance.” In Kirgan v. FCA LLC, Case No. 10-1392, 2013 U.S. Dist. LEXIS 51747 (C.D. Ill. Apr. 10, 2013), the plaintiff had filed an EEOC claim contesting his […] ... continue reading

May 22, 2013

Google Not Given Safe Harbor Under Rule 37(e) for Failure to Preserve Past Versions

On April 2, 2013, U.S. Magistrate Paul Grewal in the Northern District of California issued an opinion in Dunbar v Google (2013 US Dist LEXIS 48630, N.D.Cal, April 2, 2013) that has the potential for far-reaching interpretation regarding the extent to which document revisions are subject to preservation. The nature of the case is the […] ... continue reading

May 22, 2013

PREX NY: Leading Experts Provide Updates on Latest Developments in Case Law and Preservation Best Practices

Following last September’s successful Conference on Preservation Excellence, or PREX for short,  Legal Hold Pro took the show on the road to New York on April 29, 2013. The half-day “mini-conference” was a highly successful due to a group of phenomenal speakers led by Paul Weiner (Littler Mendelson) and Robert Owen (Sutherland Asbill & Brennan […] ... continue reading

April 26, 2013

Arizona District Court Imposes Harsh Sanctions for Spoliation with a ‘Culpable Mind’ in Day v. LSI

What started out as a seemingly run-of-the-mill employment case quickly fell down the spoliation rabbit hole resulting in severe sanctions including partial default judgment, an adverse inference instruction and a $10,000 monetary award. The 29-page opinion by U.S. District Judge Cindy K. Jorgenson goes into great detail about the facts of the defendants’ preservation efforts […] ... continue reading

April 26, 2013

Adverse Inference Sanction Issued in N.J. Case Involving Spoliation of Facebook Data Is a Lesson on Social Media Disposition

An opinion from March in a personal injury case involving the deletion of a Facebook account is a good lesson for e-discovery professionals about the vulnerability of social media to irretrievable loss. U.S. Magistrate Steven Mannion ordered an adverse inference instruction to the jury after the plaintiff in Gatto v. United Air Lines was determined […] ... continue reading

March 20, 2013

Federal Circuit Overturns Adverse Inference Sanction for Spoliation in Adams. v. Dell

[Correction — This article has been corrected to show that the ruling was from the Federal Circuit, not the Tenth Circuit as originally reported. - Ed.] The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp. has been an ongoing saga with actions dating back to the 1990s. In recent […] ... continue reading

March 19, 2013

Two EEOC Discrimination Cases Lead to Serious Sanctions for ‘Inexcusable’ and ‘Careless’ Failures to Issue Litigation Holds Resulting in Spoliation

If you believe in coincidences, there was a significant one that occurred in February. Two Federal discrimination cases, EEOC v. JP Morgan Chase in the Southern District of Ohio (Sixth Circuit) and EEOC v. Ventura Corp. from the District of Puerto Rico (First Circuit), had rulings against defendants which were sanctioned for failing to preserve […] ... continue reading

March 19, 2013

Colorado Court Finds Negligence In the Case of the Missing Text Messages

Club owners and DJs going into business together may sound like a bad idea, and that notion was borne out in a recent Colorado case that involved an iPhone with text messages that had gone missing. District Judge R. Brooke Jackson issued a wide-ranging opinion in late January responding to seven motions; for the sake […] ... continue reading

February 18, 2013

Corporate Counsel Agenda Survey Shows Creating Culture of Compliance Is Among Top Concerns

A new national survey of corporate counsel released February 15 revealed that creating a culture of compliance is a top priority in 2013. The “Corporate Counsel Agenda 2013” survey published by ALM Legal Intelligence queried 126 GCs, Chief Legal Officers and deputy general counsels at companies with revenue ranging from more than $1 billion (43%), […] ... continue reading

February 18, 2013

New York and Delaware State Courts Address Preservation in New E-Discovery Rules

In the month of January, two influential state court systems introduced measures to improve the handling of electronic discovery that directly address the needs of litigants to improve data preservation. Both New York and Delaware are moving toward the standards outlined in the Federal Rules of Civil Procedure. The Delaware Court of Chancery adopted on […] ... continue reading

January 17, 2013

Gibson Dunn’s 2012 E-Discovery Report Includes Recap on Preservation Cases, Reform Efforts and Sanctions

Every January for the past few years, Gibson Dunn publishes an extensive summary of the key decisions in the area of electronic discovery. The 2012 edition was published on January 14 and for those interested in staying on top of the latest developments it is worthwhile reading. Following are a few highlights: Preservation (pp.25-27) As […] ... continue reading

January 16, 2013

Scope of Litigation Hold Extends to Independent Agents in New Jersey Ruling Resulting in Court Ordered Litigation Hold

An opinion out of the U.S. District of New Jersey weighed in on a gray area of data preservation when it ruled that “independent agents” were subject to the parent company’s preservation obligation and therefore required to receive a litigation hold. The case delved into issues pertaining to First American Insurance’s “possession, custody and control” […] ... continue reading

December 12, 2012

Just Published: ‘Legal Hold and Data Preservation Best Practices’ Provides Practical Tips from Experts on Preservation

Legal Hold and Data Preservation Best Practices is the most current and complete guide about preservation today. Developed in concert with some of the most respected names in electronic discovery and in-house practitioners, the Guide reflects a level of dialogue and depth of discussion on litigation holds and data preservation that is unprecedented. DOWNLOAD YOUR COMPLIMENTARY COPY […] ... continue reading

December 12, 2012

Top 10 Preservation Opinions of 2012

The pace of sanction cases continued unabated during 2012. The interesting development is that during 2012 the opinions were issued much more broadly than in past years, with key cases from the Western states as well as state courts. An interesting new twist is that several courts issued sanctions for preservation failures even when ESI […] ... continue reading

December 11, 2012

New Proposed Rule Changes Focus on Appropriate Sanctions for Spoliation

By Brad Harris On November 2, 2012, the Discovery Subcommittee reached consensus to forward a rule proposal to the Standing Committee, with a recommendation that it be published for public comment in August 2013.  This effort stems from work first started by the E-Discovery Panel at the Duke Conference in May 2010, and included a […] ... continue reading

October 25, 2012

‘Lackadaisical’ Litigation Holds by Federal Government Undermines Medicaid Fraud Case

By Brad Harris In a ruling that will have defense lawyers licking their chops, U.S. District Judge William P. Johnson on October 3 upheld U.S. Magistrate Alan C. Torgerson’s opinion when the Court unequivocally overruled objections regarding spoliation sanctions due to an inadequate litigation hold process. Department of Justice lawyers were attempting to overturn Judge […] ... continue reading

October 24, 2012

Scentsy v. B.R. Chase: Whiffs of Spoliation from Plaintiff in Idaho Case Causes Court to Take Action

By Brad Harris Earlier this month, Chief Judge B. Lynn Winmill (D.Idaho) issued a court order against Scentsy Inc., the plaintiff in a copyright infringement case between two scented candle makers, for failing to issue a litigation hold and inadequate retention policies. While the court determined that spoliation was unlikely, it took the matter seriously […] ... continue reading

October 01, 2012

Hynix v. Rambus: Rambus’s $397M Judgment to Be Lowered Due to Revised Consideration of Trigger Event

In what feels like the never-ending story, a new chapter on the long-running patent infringement case between Hynix and Rambus opened with a ruling by U.S. District Judge Ronald M. Whyte (N.D. Cal.) on September 21, 2012. The court’s latest opinion, following nearly 7 years after the original trial, is likely to reduce dramatically the […] ... continue reading

October 01, 2012

PREX12 Recap – The Four Overarching Themes That Emerged at the Conference on Preservation Excellence

The 2012 Conference on Preservation Excellence (PREX12) was held September 27-28 in Portland, Ore., and proved to be an event that raised the bar on data preservation. With more than 100 attendees, the level of dialogue and depth of discussion on litigation holds and data preservation was unprecedented. The goal of the conference and all […] ... continue reading

August 15, 2012

Conference on Preservation Excellence Adds Distinguished Judicial Panel

The 2012 Conference on Preservation Excellence announced today the addition of a judicial panel for a session called “The View from the Bench on Preservation.”  The session will feature the following judges: Hon. Paul S. Grewal, U.S. Magistrate Judge, U.S. District for the Northern District of California and who recently wrote Apple, Inc. v. Samsung […] ... continue reading

August 03, 2012

Apple v. Samsung: Lack of Custodian Follow-Up and Failure to Suspend Auto-Deletion of Email Equals Adverse Inference

The stakes could hardly be higher than the multi-billion dollar design patent trial between high tech titans Apple and Samsung – both are among the top 30 largest global companies. Apple’s iPhone invented the smart phone category and this suit alleges that Samsung copied the iPhone’s design in violation of its patents. With hundreds of […] ... continue reading

July 26, 2012

Conference on Preservation Excellence to Debut September 27-28, 2012 in Portland, Ore.

National e-discovery leaders and in-house practitioners gather for first conference to focus on legal preservation that will provide practical advice for reducing the burden of preservation The 2012 Conference on Preservation Excellence, the first conference focused exclusively on improving the legal preservation process, will be held September 27-28, 2012, in Portland, Oregon. The Conference’s goal […] ... continue reading

July 17, 2012

Chin v. Port Authority: Second Circuit Seemingly Rejects Pension Committee’s Standard for Gross Negligence. But Really It Doesn’t.

By Brad Harris The latest noteworthy decision regarding spoliation sanctions stemming from preservation failures emerged out of the Second Circuit Court of Appeals on July 10, 2012. In Chin v. Port Authority of New York New Jersey, a counter-claim by plaintiff Howard Chin sought a spoliation sanction of an adverse inference instruction due to the […] ... continue reading

July 11, 2012

eDiscovery Journal Looks at the Latest Trends in Legal Hold Management

E-Discovery Journal’s Mikki Tomlinson wrote about her recent experiences in overseeing a RFI process for a major corporate client. Her candor in “What’s Trending in Legal Hold Management?” from July 10 provides some timely insights into the current trends in legal hold technology based on the combination of an in-depth reviews of more than a […] ... continue reading

July 11, 2012

Motion for Spoliation Sanctions Falters When Plaintiff’s Wishful Thinking Doesn’t Become Reality

Our friend Josh Gilliland at Bow Tie Law recently recounted a ruling that offered a new twist on the motion for spoliation sanctions. In Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, (3d Cir. N.J. June 20, 2012) out of U.S. Court of Appeals, Third Circuit, the Plaintiff appealed a District Court’s denial of a […] ... continue reading

July 10, 2012

New Edition of Federal Judiciary Center Pocket Guide on E-Discovery Reflects Growing Focus on Preservation

The Federal Judiciary Center recently published the second edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges. This 48-page guide follows the first edition from 2007 and is a good measure of how preservation has evolved during the intervening five years. The fact that the Pocket Guide doubled in length owes to […] ... continue reading

July 10, 2012

Despite No Evidence of Spoliation, Court Orders Up to $70K in Sanctions for Preservation Failures Anyway

By Brad Harris A District Judge in New Jersey upheld the opinion of a Magistrate’s finding of sanctions on appeal in a liability case out of U.S. District of New Jersey – despite the fact that no evidence of spoliation was concretely found. We first learned about this from Scott Etish’s post at E-Discovery Law […] ... continue reading

May 30, 2012

E-Discovery Leaders Describe Challenges of Getting Preservation and Legal Holds Right

An all-star panel from the e-discovery world gathered at the New York City Bar Association on May 17, 2012, to discuss the challenges faced in different roles when it comes to issuing legal holds and managing preservation. The event, “Four Perspectives on Preservation and Proportionality,” was organized by Legal Hold Pro and featured U.S. Magistrate […] ... continue reading

May 29, 2012

Alabama Opinion Denies Motion for Spoliation Sanctions Due to Defendant’s ‘Good Faith’ Legal Hold Efforts

A recent opinion from the Middle District of Alabama (M.D. Ala.) demonstrates the importance of having a sound litigation hold process in place to avoid sanctions for failure to preserve electronic information. We first read about this case in A Spoliation Ace in the Hole which appears in Cozen O’Connor’s E-Discovery Law Review. In Danny […] ... continue reading

May 28, 2012

New York State Supreme Court Dismisses Case Due to Spoliation from Ineffective Litigation Hold Process

In a legal malpractice case dating back to 2008, a Plaintiff had a $20 million claim dismissed outright due to ESI lost resulting from a legal hold that was completely ineffective. In 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), which we […] ... continue reading

May 16, 2012

Zapproved Partners with Nuix to Launch Legal Hold Solution

Nuix, a worldwide provider of information management technologies, and Zapproved Inc., developers of Legal Hold Pro™, announced a technology partnership to introduce Nuix Legal Hold.  Nuix Legal Hold is a cloud-based legal hold notification and compliance tracking system that works with Nuix collection and eDiscovery solutions.  Nuix Legal Hold is built on Legal Hold Pro, […] ... continue reading

April 24, 2012

Pouncil v. Branch Law Firm – A Reminder that Law Firms Need to Get With the Times on Issuing Legal Holds

LeClairRyan’s Dennis Kiker posted on April 23 about a new opinion from U.S. Magistrate Judge David Waxse that illustrates the importance for law firms to have their preservation efforts in order (just like their clients). In Pouncil v. Branch Law Firm (Case No. 10-1314-JTM-DJW, D. Kan. Mar. 7, 2012), the law firm was involved in […] ... continue reading

April 24, 2012

Thin Guidance from JETWG on Preservation of Digital Evidence in Criminal Cases

To date almost every discussion surrounding preservation of electronic evidence has focused on civil cases, despite the routine use of digital evidence in criminal matters. The influential U.S. District Judge Shira A. Scheindlin and Jeffrey Rabkin published Criminal Law Catches Up: New ESI Guidelines Issued in the New York Law Journal which recaps the Recommendations for […] ... continue reading

April 17, 2012

Research Alert: Our Four Big Takeaways from RAND Study That Zeroes In On Preservation as a Major Pain Point

By Brad Harris The RAND Institute for Civil Justice (ICJ) published an interesting study last week focusing on the costs of electronic discovery in civil litigation. The 131-page report Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery offers some great insights into the costs of discovery, and perhaps more importantly, the current […] ... continue reading

March 29, 2012

Event Alert: Legal Hold Pro Presents ‘Four Perspectives on Preservation and Proportionality’ in New York on May 17 with Distinguished Panel

Four Perspectives on Preservation and Proportionality: The Judge, The GC, Plaintiffs’ Counsel and Defense Counsel Date:   Thursday, May 17 Time:  8:30 to 10:00 a.m. Location:  New York City Bar Association Building, 42 W. 44th St., New York, NY Cost:  Complimentary, but space is limited. Reservation required. CLE Credit:  Pending for NY PROGRAM OVERVIEW  Legal Hold Pro is […] ... continue reading

March 12, 2012

Three Lessons from Perez v. Vezer Industrial: 1) Legal Holds Are Necessary Regardless of Org. Size; 2) Don’t Inflate Your Costs; and 3) Don’t Let Satan Drive

In late 2011, an opinion out of the Eastern District of California reaffirms that even if a company is small, size cannot be an excuse for failing to issue a litigation hold to preserve electronic data.  The opinion by U.S. Magistrate Carolyn K. Delaney in Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. […] ... continue reading

February 21, 2012

New York Appeals Court Upholds Zubulake Legal Hold Standard in Voom v. EchoStar Resulting in Adverse Inference Instruction

Voom HD Holdings LLC v. EchoStar Satellite LLC, 2012 NY Slip Op 00658 (January 31, 2012) A unanimous opinion out of a New York state appellate court in the Voom v. EchoStar is the first case at this level to explicitly uphold the standards set forth by U.S. District Judge Shira Scheindlin in Zubulake and […] ... continue reading

February 15, 2012

New Study Points to Need for Change in How Government Agencies Manage E-Discovery

IE Discovery just published its 2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies and it seems like “times they are a-changin,’” to quote the inimitable Bob Dylan. In-house legal teams at the Federal level are starting to feel the same pain as their counterparts about the rigors of preservation and electronic discovery. This […] ... continue reading

February 08, 2012

LegalTech 2012: Don’t Take Your Eyes Off of the Preservation Ball (Or Four Reasons Why Predictive Coding Isn’t for Everyone)

Last week we celebrated the annual rite of passage that is LegalTech New York. By all accounts it was a successful year with record attendance, bustling Exhibit Halls and non-stop presentations. Leading up to the conference, Law Technology News wrote about the expected buzzwords which pointed to “predictive coding” (a.k.a. “technology assisted review”), “social discovery,” […] ... continue reading

February 08, 2012

Legal Hold Pro Adds Collection Tracking Capability to Enhance Your Preservation Workflow

We have exciting news! Legal Hold Pro can now initiate and track collection tasks associated with a legal hold. After notifying custodians of a duty to preserve, a legal team often needs to take additional steps such as suspending auto-deletion in an email archive or triggering a data collection. With this new capability, Legal Hold […] ... continue reading

February 08, 2012

Legal Hold Pro Introduces Law Firm Advantage Edition that Provides New Way to Collaborate with Clients on Preservation Efforts

Last week at LegalTech NY, we introduced a set of new features so law firms can work with clients to deploy the fastest growing legal hold notification and compliance tracking system. Since Legal Hold Pro is web-based, law firms can immediately utilize the tool with clients without the need to install, configure or maintain software. […] ... continue reading

February 08, 2012

Zapproved Appoints Hon. Robert J. Cindrich (Ret.) to Board of Directors

We are proud to announce that  our Board of Directors has voted to appoint Hon. Robert J. Cindrich (Ret.) to the Board. Cindrich served as a Federal judge in the U.S. District Court for Western Pennsylvania for 10 years and currently serves as Senior Advisor to the Office of the President at the University of […] ... continue reading

January 26, 2012

Come See What’s New with Legal Hold Pro at LegalTech from Jan. 30 to Feb. 1

LegalTech is right around the corner with the show kicking off on Monday, January 30, and continuing through Wednesday, February 1, at the Hilton New York. Legal Hold Pro will be  exhibiting and rolling out some exciting new enhancements to our industry leading legal hold management system. If you are planning to attend, come see […] ... continue reading

December 16, 2011

Georgetown 2011 Recap: Three Takeaways on Preservation

We were honored once again to sponsor the Georgetown Law Center 8th Annual Advanced eDiscovery Institute which took place November 17-18 in Pentagon City, VA. This conference is an annual highlight because of the outstanding quality of the panels, which include many of the country’s most influential jurists.  We were also pleased to have contributed […] ... continue reading

December 16, 2011

Subsequent Briefs in Pippins v. KPMG Provide Further Insights into Dispute Over Hard Drive Preservation

By Brad Harris In our recently published white paper, Preservation and Proportionality, Ron Hedges and I solicited input from industry thought leaders on the current debate over the rising costs of data preservation and the call for proportionality through cooperation, court order or rule changes.  A particularly relevant opinion was issued from the Southern District […] ... continue reading

December 12, 2011

NACCO v. Lilly: Spoliation Sanctions in Tennessee Case Shows Ongoing Challenge of Preservation

By Brad Harris We just learned of another preservation case involving sanctions but what makes this one stand out is that the litigation started in 2011 – after Pension Committee, Rimkus, Victor Stanley II, and the other opinions showing the courts’ focus on preservation issues. This case out of the Western District of Tennessee, which […] ... continue reading

November 16, 2011

Just Published! ‘Preservation and Proportionality’ Solicits Opinions on How to Handle Preservation in the Post-Pension Committee World

Today we are announcing the publication of “Preservation and Proportionality: Perspectives on Lowering the Burden of Preserving Data in Civil Litigation,” a 36-page white paper that offers a comprehensive resource in the ongoing discussion around best practices for data preservation. “Preservation and Proportionality” is edited by our Brad Harris and Ron Hedges, a former United […] ... continue reading

October 17, 2011

New S.D.N.Y. Ruling in Pippins v. KPMG Focuses on Proportionality in Preservation

By Brad Harris Pippins v KPMG, 2011 WL 4701849 (S.D.N.Y.) October 7, 2011 U.S. Magistrate Judge James L. Cott from the influential Southern District of New York (S.D.N.Y.) released an interesting opinion in early October that reflects on an emerging question: Should the principles of proportionality as articulated in FRCP Rule 26(b)(2)(c) apply to a […] ... continue reading

October 07, 2011

New Jersey Company Found Grossly Negligent for Inadequate Legal Hold

N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., September 21, 2011) On September 21, 2011, a new ruling out of New Jersey highlighted the intolerance of the courts for improperly implemented litigation holds.  In N.V.E. v. Palmeroni,  U.S. District Judge Esther Salas imposed monetary […] ... continue reading

October 06, 2011

Four Takeaways from the Dallas Mini-Conference on Preservation and Sanctions

By Brad Harris Last month, the Advisory Committee on Civil Rules called together a mini-conference to solicit greater insight in the nature and scope of the preservation problem, including how technology is contributing to the issue and how rule changes might help address the problem. Held under the auspices of the Discovery Subcommittee, the Mini-Conference […] ... continue reading

August 24, 2011

Webinar: “Partners in Preservation: How Law Firms Can Help Clients Avoid E-discovery Sanctions” on Sept. 20

REGISTER NOW! Over the last 18 months, data preservation for discovery has been in the spotlight like never before. One important aspect is the emphasis that several courts have are put on the obligation of outside counsel to oversee the preservation process. Many counsel are now taking a much more active role to help ensure […] ... continue reading

August 24, 2011

Webinar: “Data Preservation and Legal Holds: Best Practices and New Technology” on Sept. 13

REGISTER NOW! It has been nearly eight years since Judge Shira Scheindlin issued the Zubulake opinions that set the course for modern eDiscovery. Last year, she issued her notable Pension Committee ruling that reinforced considerations for reasonable and good faith expectations when responding to a duty to preserve, which set off a chain reaction of other […] ... continue reading

August 19, 2011

Legal Holds Feature in Gibson Dunn’s 2011 Mid-Year E-Discovery Report

Since the law firm Gibson Dunn started covering electronic discovery rulings in its twice-per-year reports, they have become a “go to” resource for practitioners.  The team at Gibson Dunn recaps notable cases and organizes the report so that key trends are highlighted and they recently released the 2011 Mid-Year E-Discovery Report. In the first half […] ... continue reading

August 16, 2011

The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation after Issuing Weak Legal Hold

by Brad Harris In July, we posted about the DuPont v. Kolon opinion in April which was noteworthy in that DuPont escaped any sanctions in spite of spoliation by having a strong preservation plan in place.  The Eastern District of Virginia’s Senior District Judge Robert E. Payne issued a subsequent ruling on July 21 responding […] ... continue reading

July 28, 2011

Webinar: “Data Preservation 2011 – Looking at How Your Company Can Be State-of-the-Art” on August 3rd

Register Here:   https://www2.gotomeeting.com/register/368826627 TERIS and Legal Hold Pro present a one-hour seminar on optimizing legal preservation in 2011 when the courts’ expectations have never been higher and e-discovery practices are being scrutinized by opposing counsel.  New opinions such as Haraburda v. Arcelor Mittal, Dupont v. Kolon and Green v. Blitz USA are continuing to put the spotlight on what companies should and shouldn’t […] ... continue reading

July 18, 2011

Haraburda v. Arcelor Mittal: Court Orders Litigation Hold After Defendant Attempts to Delay Until after ‘Meet and Confer’

Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) An opinion in late June from the Northern District of Indiana firmly reiterated the need for a legal hold and shot down one litigant’s attempts to postpone its timing until after the Rule 26(f) meeting.  That strategy […] ... continue reading

July 12, 2011

DuPont v. Kolon: DuPont Avoids Sanctions by Maintaining Legal Hold Practices

8/16 UPDATE: See subsequent blog post: The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation After Issuing Weak Legal Hold (8/16/2011) E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. LEXIS 45888 (E.D. Va. Apr. 27, 2011) In an opinion from late April, Sr. […] ... continue reading

June 19, 2011

Webinar: “A Compelling Need for Change in Legal Hold Practices” with Charlotte Riser Harris and Brad Harris

Charlotte Riser Harris, Litigation Support Manager for Hess Corporation, and Brad Harris, leading national  preservation expert and VP for Legal Products at Zapproved (no relation to Charlotte), team up for a one-hour webinar designed to help in-house legal teams adapt to the latest preservation standards. The content is adapted from their co-authored article that appeared in […] ... continue reading

June 07, 2011

Some Say Courts Don’t Agree with Pension Committee – But Is That Really the Case?

By Brad Harris The preservation landscape appears to be settling down considerably compared to the turbulent year that was 2010. (If you need a refresher, see Pension Committee Revisited white paper and webinar for a complete recap.) A few opinions have come up in recent months that provide additional insight into how the courts are […] ... continue reading

April 14, 2011

National Law Journal: “Until Next Rules Change, 2010 Cases Set the Standard” by Brad Harris and Ron Hedges

On the heels of their successful Pension Committee Revisited project, our own Brad Harris and Ron Hedges collaborated once again on a contributed article that appears in the April 11 edition of the National Law Journal.  The article, “Until Next Rules Change, 2010 Cases Set the Standard,” examines the state of preservation today based on recent […] ... continue reading

April 04, 2011

Two Cases Feature Extreme Sanctions for Preservation Failures; Both Cite a Failure to Issue a Legal Hold as Key Factor

By Brad Harris Since Judge Francis’s Orbit One in October 2010, we haven’t read a lot about preservation issues. But that ended suddenly with two opinions that had come to light in recent weeks. If the building case law has not been convincing enough, then take note of these sanctions that turn up the heat […] ... continue reading

March 27, 2011

‘Legal Holds and Healthcare’ Webinar on March 30 with National Experts Brad Harris and Ken Rashbaum

Leading national experts Brad Harris and Ken Rashbaum present a one-hour program that will help any legal practitioner working in the healthcare industry. The presentation will review recent case law and its impact on preservation, look at trends in the healthcare sector and what they mean. Harris and Rashbaum then will provide recommendations for ‘best practices’ so that you will be ready when the […] ... continue reading

March 08, 2011

“Pension Committee Revisited: Where Do We Go From Here?” Webinar Features 10 E-Discovery Leaders on March 22

  “Pension Committee Revisited: Where Do We Go From Here?” is a complimentary two-hour program hosted by Brad Harris, VP for Legal Products at Zapproved, and former U.S. Magistrate Judge Ron Hedges. The program brings together a group of the best minds in electronic discovery to discuss the impact of Pension Committee one year later. The panel […] ... continue reading

February 18, 2011

Legal Hold Pro Meets the Press – February 2011 Edition

Since we have been enjoying a little attention from the press recently, we are posting a few items that have appeared during the last two weeks.  We hope you find them interesting! Pension Committee: Looking Back at a Look Back, LTN, February 15, 2011 – ALM’s editorial director for technology David Snow provides his thoughts […] ... continue reading

January 18, 2011

Just Published! “Pension Committee Revisited” edited by Brad Harris and Ron Hedges

We are proud to announce the publication of Pension Committee Revisited: One Year Later, a 42-page white paper published to mark the one-year anniversary since Judge Shira A. Scheindlin issued her landmark opinion. Pension Committee has focused the legal community on issues surrounding the preservation of electronic data involved with litigation. “Pension Committee Revisited” is edited by […] ... continue reading

December 06, 2010

Orbit One v. Numerex: Magistrate Judge Francis Offers His View on Legal Holds

By Brad Harris Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y., Oct. 26, 2010) In late October, Magistrate Judge James Francis issued an opinion that has continued the judicial debate about legal holds and other preservation practices kicked off in January 2010 with Pension Committee. Judge Francis in Orbit One openly disagrees […] ... continue reading

November 19, 2010

Rush Transcript: Judge Scheindlin Defends Pension Committee by Saying “Just Do It!” to Legal Holds

The Georgetown Law Center’s Advanced E-Discovery Institute is a highlight on the calendar every year.  The conference kicked off yesterday (Nov. 18) at the Ritz-Carlton in Pentagon City, VA, with an e-discovery case law update that involved a panel of many preeminent jurists.  The panel was moderated by The Sedona Conference’s Ken Withers and included […] ... continue reading

October 18, 2010

New “General Counsel Survey” Shows Growing Legal Hold Gap

The University of Denver’s Institute for the Advancement of the American Legal System (IAALS) recently published the results of an extensive survey it conducted with GCs around the country.  The sample size is impressive which gives weight to the survey with 485 valid responses by ACC members with titles of General Counsel or Chief Legal […] ... continue reading

September 30, 2010

Harris and Ball Present “The Enlightened Legal Hold” Webinar on October 12

This complimentary one-hour program is presented by leading e-discovery experts Brad Harris and Craig Ball. They will offer a fresh approach to legal holds following the Pension Committee opinion which they first outlined in the white paper that they co-authored which you can download at www.legalholdpro.com/enlightened. Harris and Ball will examine the “Five Deadly Sins of Legal Holds” that […] ... continue reading

September 16, 2010

The Sedona Conference Publishes Updated Legal Hold Commentary

by Brad Harris This week The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) issued an updated Commentary on Legal Holds, reflecting evolving case law and best practices since 2007.  The document remains an exemplary resource for practitioners charged with determining when a legal obligation to preserve data arises (the “trigger”) and […] ... continue reading

September 13, 2010

Victor Stanley II: Judge Grimm’s Review of the State of Preservation

by Brad Harris On Thursday, September 9, 2010, Judge Paul Grimm of the U.S. Fourth Circuit (D.MD) continuedthe 2010 tradition of huge opinions with his 89-pager about the ongoing spoliation saga in Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010). Craig Ball was the first to get the word out […] ... continue reading

August 24, 2010

“The Enlightened Legal Hold” by Brad Harris and Craig Ball Is Published Today!

We are proud to announce that “The Enlightened Legal Hold: A New Approach to Legal Preservation Following the Pension Committee Opinion” co-authored by Brad Harris and Craig Ball was published today. The latest white paper in the Legal Hold Pro™ Signature Series examines issues that have caused problems for litigants and offers a new way […] ... continue reading

August 20, 2010

Trendspotting in Legal Holds, Part 2 – The 2010 Socha-Gelbmann Electronic Discovery Survey

This is the second part of our look at two major reports on the electronic discovery sector that were released within the last month. You can read Part 1 about the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update that was posted Tuesday. Today we analyze The 2010 Socha-Gelbmann Electronic Discovery Survey […] ... continue reading

August 17, 2010

Trendspotting in Legal Holds, Part 1 – Gibson Dunn Mid-Year E-Discovery Update

Two major reports on the electronic discovery sector were released within the last month.  The first is the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update in mid-July followed by The 2010 Socha-Gelbmann Electronic Discovery Survey at the beginning of August. It is interesting to see in both reports – of case […] ... continue reading

August 13, 2010

‘Small Corporation’ Gets $10,000 Sanction for Spoliation Resulting from Lack of Written Hold

By Brad Harris Passlogix, Inc.v.2FA Technology LLC, et al., 2010 WL 1702216 (S.D.N.Y., April 27, 2010) An interesting case appeared from New York’s Southern District that saw some egregious behavior by the defendant to purposefully undermine the discovery process. In fact, the court characterized the defendant’s outrageous tactics were undertaken “in an effort to expand discovery, […] ... continue reading

July 02, 2010

Coming Soon to Silicon Valley! “Hold Fast” CLE on July 15th

You are invited to join D4 and Legal Hold Pro for a complimentary lunch program and earn 1.0 MCLE credit approved by the California State Bar Association. Thursday, July 15, 2010 Four Seasons Hotel Silicon Valley 2050 University Avenue East Palo Alto, CA Registration at 11:30 a.m. with lunch being served at 12:00 p.m. Space […] ... continue reading

June 10, 2010

Northern District of Illinois Makes Its Own Way with Opinion Echoing Need for Strong Legal Holds

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) By Brad Harris On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the […] ... continue reading

June 03, 2010

Judge Scheindlin Gives Pension Committee a Minor Tune-Up

By Brad Harris For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a […] ... continue reading

May 26, 2010

“D&O Litigation Landmine: Legal Holds” Webinar on June 3

Spoliation is a scary word; the consequences for directors and officers are even scarier.  No longer will judges give companies a “free pass” for failing to properly implement a litigation hold in the face of reasonably anticipated litigation or government investigation.  A slew of recent cases shows just how devastating an improperly designed or executed litigation […] ... continue reading

May 07, 2010

The Drumbeat Continues: Judge Turns Up the Heat with $25,000 Sanction

By Brad Harris Merck Eprova AG v. Gnosis S.p.A. et al., 07 Civ. 5898 (S.D.N.Y. Apr. 20, 2010) On April 20, 2010, U.S. District Judge Richard Sullivan hammered home the need for proper legal holds in a big way.  In a case that not only echoes Judge Scheindlin’s Pension Committee opinion, but takes it a […] ... continue reading

April 27, 2010

Second Verse Same as the First: Failure to Issue a Legal Hold is Gross Negligence

By Brad Harris Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010) Our friend Josh Gilliland of the Bow Tie Law blog posted last week about an important case out of the Western District of New York involving litigation holds.  (I highly recommend that you check out Josh’s entertaining […] ... continue reading

April 13, 2010

TechnoLawyer Review: Legal Hold Pro Earns 4.8 Rating (Out of 5)

Our first official product review was published today and we couldn’t be more pleased!  TechnoLawyer, a popular legal technology and practice management resource that consists of a network of free, critically-acclaimed e-mail newsletters, published an in-depth review of Legal Hold Pro written by Bruce Olson, President of ONLAW Trial Technologies. The article provides a detailed […] ... continue reading

February 25, 2010

Rimkus v. Cammarata: Another Great Reason Organizations Need an Effective Legal Hold Process

By Brad Harris Coming on the heels of Judge Shira Scheindlin’s Pension Committee v. Banc of America Securities opinion in January, a opinion was issued that centers around appropriate actions to preserve potentially relevant evidence.  The case is Rimkus Consulting Group Inc. v. Nickie G. Cammarata, et al., 07-cv-00405 (SDTX Feb. 19, 2010) out of […] ... continue reading

February 24, 2010

“Arkfeld on Legal Holds” Webinar on Feb. 26th

D4, LLC and Legal Hold Pro present a one-hour program featuring Michael Arkfeld, Esq., author of Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of U.S. District Judge Shira Scheindlin’s recent Pension Committee v. Banc of America Securities opinion. The webinar […] ... continue reading

February 19, 2010

2010 – The Year of the Legal Hold

We were excited about attending LegalTech earlier this month, but nothing could have prepared us for the response we received. Legal Hold Pro built a buzz as evidenced by comments from industry analyst Brian Babineau of ESG said “the best vendor/solution I saw at LegalTech was Legal Hold Pro… It’s a no-brainer for companies!!” In […] ... continue reading

February 11, 2010

Corporate Counsel: “How Companies Have to Handle Legal Holds”

Brad Harris, our Director of Legal Products, and John Jablonski, Partner at Goldberg Segalla and legal hold expert, today published a by-lined article on Corporate Counsel magazine’s web site.  The article offers advice to in-house legal teams about the implications of Judge Scheindlin’s recent Pension Committee opinion. Brad and John offer timely information that analyzes […] ... continue reading

February 05, 2010

Legal Hold Pro Called the “Best Vendor/Solution” at LegalTech 2010

Our team just returned from LegalTech New York after an exhilarating week in which we were able to make a big splash about Legal Hold Pro to the legal industry.  We believe we have the right solution — namely a cloud-based legal hold management system — at the right time. Brian Babineau, a Senior Analyst […] ... continue reading

February 04, 2010

Just Published! An in-depth analysis of Judge Scheindlin’s Pension Committee Opinion

“The analysis of Judge Scheindlin’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to […] ... continue reading

January 19, 2010

“12 Myths about Legal Holds” Webinar on January 26 covers Zubulake to Judge Scheindlin’s Latest Opinion

Program Overview: The one-hour program will examine common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion. John Jablonski and Brad Harris will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it […] ... continue reading

January 14, 2010

FLASH UPDATE! Judge Scheindlin Strongly Reiterates Need for Written Hold Notification

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 11, 2010) Starting with the intro of her opinion, Judge Scheindlin invokes Santayana’s famous saying that “those who cannot remember the past are condemned to repeat it.”  This ominous start is […] ... continue reading

January 11, 2010

“12 Myths about Legal Holds” Is Now Available!

Today we released a new white paper titled “12 Myths about Legal Holds” authored by Brad Harris, the company’s new Director of Legal Products.  The first paper in the Legal Hold Pro™ Signature Series is available immediately at no cost at www.legalholdpro.com/myths. The 12-page publication zeroes in on common misconceptions about litigation holds that are […] ... continue reading

December 03, 2009

If You Don’t Issue a Hold, Now the Court May Do It for You

Synventive Molding Solutions v. Husky Injection Molding Systems, 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009) A recent case out of the U.S. District Court of Vermont may be the next seminal case for legal holds as the judge  clarified several ambiguous points around legal holds.  Judge Conroy’s opinion and order for Synventive […] ... continue reading

December 03, 2009

Florida Court Sanctions In-house Counsel for Spoliation Resulting from Poor Legal Hold

Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009) This case started under confusing circumstances which resulted in Robert Swofford being shot seven times in his home by sheriff’s deputies in Orlando. After he recovered, he sued the sheriff’s office for negligence. Now, David Lane, the GC for the Seminole County Sheriffs Office is taking […] ... continue reading

August 18, 2009

Legal Hold Pro Alert: Pinstripe v. Manpower, Major Tours v. Colorel

A pair of recent rulings have shed additional light on the need for a strong, defensible legal hold implementation.  The two cases illustrate how the courts are intolerant when defendants are ignorant of the legal hold process: Pinstripe, Inc. v. Manpower, Inc. (7/29/09) – An un-issued legal hold and “good faith” efforts still yield sanction. […] ... continue reading

September 02, 2014

Clarifying the Law of the Land for Preservation in the Sixth Circuit

Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 WL 2869286 (6th Cir. June 25, 2014) The case arose from a contract involving the development of delivery- and subscription-tracking software for the Chicago Tribune. The relationship between the parties deteriorated, and the defendant Paragon terminated the contract. The plaintiff, Automated Solutions Corp. (ASC), […] ... continue reading

August 21, 2014

Zapproved Is No. 289 on the 2014 Inc. 500 List of Fastest-Growing U.S. Private Companies

Inc. magazine ranked Zapproved No. 289 on its 33rd annual Inc. 500|5000, an exclusive ranking of the nation’s fastest-growing private companies. Zapproved also ranked No. 24 in the category of fastest growing software companies in the nation, ranked No. 5 on the list of Oregon’s top growing private companies and No. 4 on the Portland […] ... continue reading

August 13, 2014

Zapproved Predicts Reaching the Tipping Point for Automated Data Preservation By 2015

Second Annual Survey Reveals Trends Towards Automating Data Preservation and the Risks and Concerns Facing Legal Professionals The 2014 Legal Hold and Data Preservation Benchmark Survey, the largest survey conducted in the area of electronic discovery, identifies several key findings that show a significant shift toward more automation in litigation holds resulting in higher confidence […] ... continue reading

July 30, 2014

Texas Supreme Court Overturns Case Based on Spoliation Instruction to Jury

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) On July 3, the Supreme Court of Texas issued a significant opinion in clarifying appropriate sanctions for spoliation. The ruling removes discretion of trial judges to administer sanctions by only permitting jury instructions when the spoliation was intentional or deprived opposing party […] ... continue reading

July 24, 2014

What Is the Extent of Counsel’s Obligation to Ensure Clients Preserve Data?

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13cv825 (E.D. Va. 2014) Spoliate once, shame on the client; however, spoliate two or more times, shame on the client’s counsel. At least, that seems to be the likely outcome of a dispute over attorneys’ fees and costs currently pending before the Eastern District of Virginia. In […] ... continue reading

July 24, 2014

Discovery Cannot “Go Smoothly” When Counsel Do Not Exercise Proper Oversight Into Preservation

Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014) To put it mildly, “[d]iscovery did not go smoothly” in Brown v. Tellermate Holdings Ltd., an age discrimination case stemming from the termination of the plaintiffs’ employment. According to the court, “significant problems arose in this case for […] ... continue reading

July 24, 2014

Company That Failed to Issue Litigation Hold for Three Years Suffers Adverse Inference

Osberg v. Foot Locker, No. 07-cv-1358 (KBF), 2014 U.S. Dist. LEXIS 95543 (S.D.N.Y. July 14, 2014) In Osberg v. Foot Locker, an ERISA matter, the plaintiffs filed a motion seeking sanctions for spoliation alleging that the defendants had destroyed documents. Despite several pending lawsuits involving similar issues against the defendants that were filed as early […] ... continue reading

June 04, 2014

A Party’s Failure to Preserve Invites Judicial Intervention

A magistrate judge recently ordered intrusive measures to rectify a plaintiff’s inadequate, self-directed search for ESI in Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014). The deficiencies included the following: failure of plaintiff’s counsel to travel to Colombia to meet with the client’s IT personnel about the relevant […] ... continue reading

June 04, 2014

A Cautionary Tale About E-Discovery Sanctions

When one defendant turned against the others in Pacific Packaging Products, Inc. v. Barenboim, No. 09-4320, Mass. Super. Ct., a Massachusetts Superior Court judge turned against all of them. Judge Bruce Henry ordered default judgments, dismissed counterclaims, and ordered the payment of attorneys’ fees upon discovering the defendants in this trade secrets case had committed […] ... continue reading

May 20, 2014

Event Notice — Upcoming PREX Symposiums and User Group Meetings in Palo Alto and Chicago

Please join us for these outstanding events that are coming up in early June 2014! June 5 — Silicon Valley Symposium on Preservation Excellence Date:       Thursday, June 5, 2014 Agenda:  4:00 p.m. – Symposium: “Data Preservation in the Age of Social Media” 5:30 p.m.  – Complimentary Happy Hour Cost:         […] ... continue reading

May 08, 2014

Texas Judge Orders Adverse Inference Sanction for ‘Staggering’ Loss of Evidence

Quantlab Techs. Ltd. v. Godlevsky, No. No. 4:09-cv-4039, 2014 U.S. Dist. LEXIS 20305 (S.D. Tex. Feb. 19, 2014) The court determined that an adverse inference instruction was the appropriate remedy for the loss of a “staggering amount of evidence potentially relevant to this case,” id. at *82, even though the plaintiffs could not adduce evidence […] ... continue reading

May 08, 2014

Spoliation Four Ways: Washington Court Orders $25,000 and Attorneys’ Fees and Costs

Knickerbocker v. Corinthian Colleges, No. C12-1142JLR (W.D. Wash. Apr. 7, 2014) In this employment law case, the court found “clear and convincing evidence” that the defendant and its counsel “have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith.” Sanctions were necessary to remedy their […] ... continue reading

April 14, 2014

Last-Minute Revision Brings Forth Streamlined Proposal for Rule 37(e) at Advisory Committee Meeting

On April 10-11 2014,  the Advisory Committee on Civil Rules chaired by U.S. District Judge David Campbell (D. Ariz.) convened at Lewis & Clark College in Portland, Ore., to consider final proposals to amend the Federal Rules of Civil Procedure. While not final, this was the culmination of an effort that kicked off in 2009 and […] ... continue reading

April 02, 2014

Legal Hold Pro Voted ‘Best of The National Law Journal 2014′

Legal Hold Pro is proud to announce that we have been voted the best over our competitors in the 2014 The Best of The National Law Journal Readers Rankings for legal hold solutions. Nearly 6,500 legal professionals cast votes for over 465 of their favorite vendors in 94 categories. The winners were announced on March 31. Click […] ... continue reading

March 12, 2014

Pharmaceutical Company Faces Setback from Sanctions for ‘Bad Faith’ Spoliation in Huge Product Liability Case

A 2,600-member class action lawsuit took a damaging turn on the eve of a critical bellwether trial when a judge ruled that the pharmaceutical company disregarded a litigation hold resulting in the loss of critical communications about the drug in question. The trial stemmed from allegations that using Actos® from Takeda Pharmaceutical could result in […] ... continue reading

March 12, 2014

Judge Refuses to Vacate Spoliation Sanctions in Intellectual Property Dispute – Even After Case Settles

A U.S. Magistrate in the Eastern District of Virginia took the extraordinary step of handwriting the denial of a motion by the parties to have spoliation sanctions vacated in Digital Vending Services International LLC v. The University of Phoenix Inc. et al., No. 2:09-cv-00555, E.D.Va. This could mark a new threshold in the courts of not […] ... continue reading

January 31, 2014

Court Fines Defendants $931,500 in Pradaxa Class Action After Repeated Failures to Implement Legal Holds

The class action product liability case against Boehringer Ingelheim Pharmaceuticals Inc., or BIPI, regarding the blood thinning drug sold as Pradaxa took a stunning turn with December 9, 2013 opinion by Chief Judge David R. Herndon of the Southern District of Illinois. In the blistering opinion the Court cited failure after failure, including misrepresentation of […] ... continue reading

January 31, 2014

Selective Preservation of Text Messages Uncovered with an Undisclosed Subpoena that Is Allowed to Impeach Evidence; Adverse Inference Sanction Results

The January 16, 2014 opinion in Calderon v. Corporacion Puertorique a de Salud from the District of Puerto Rico showed that selective preservation (or selective spoliation, depending on one’s perspective) is unwise, but also an undisclosed subpoena can be used as long it is used solely for impeachment purposes. District Judge Francisco A. Besosa found […] ... continue reading

January 31, 2014

Collections Tracking in Legal Hold Pro Provides Real-time Intelligence Across the Entire Preservation Process

We introduced today the new Collections Tracking module in Legal Hold Pro™, the industry’s fastest growing legal hold management software. With Collections Tracking, in-house legal teams will have a powerful tool for directing and overseeing both the preservation and collection of potentially responsive electronically stored information. Once custodians have been notified of a preservation obligation, […] ... continue reading

December 18, 2013

Top 10 Legal Hold and Data Preservation Opinions of 2013

In our second annual recap, we are looking back at the year that was in, terms of opinions, centered on legal holds and data preservation. Any expectation that the number of cases would subside fell by the wayside early in 2013 with a number of opinions in the first quarter and the pace has not […] ... continue reading

December 11, 2013

Calif. Magistrate Judge Recommends Adverse Inference Sanction for Failure to Issue Legal Hold Despite ‘Saved Everything’ Defense

On November 25, 2013, U.S. Magistrate Judge William V. Gallo of the Southern District of California issued an order in a patent infringement suit in which he granted an adverse inference and monetary sanctions for spoliation sanctions deemed “grossly negligent.” The ruling in Zest IP Holdings, LLC v. Implant Direct Mfg., LLC (S.D. Cal., Civil […] ... continue reading

December 11, 2013

Puerto Rico Magistrate Judge Denies Adverse Inference Motion Absent of Prejudice for Spoliation of Executives’ Personal Email

The plaintiff in a commercial litigation between two telecom providers in Puerto Rico brought a motion for an adverse inference sanction when it learned that relevant personal emails of the defendant’s executives were not preserved. The court denied the motion citing the defendants’ preservation efforts including a timely litigation hold, willingness to recover lost emails, […] ... continue reading

November 26, 2013

Legal Hold Pro Wins ‘Best of Legal Times 2013′

Legal Hold Pro is proud to announce that our software has been voted the best legal hold solution over our competitors in the 2013 The Best of Legal Times annual readers’ poll. The awards for 90 different categories were announced on November 25 and will be distributed in a special print supplement to The National Law […] ... continue reading

November 01, 2013

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold

A U.S. Magistrate Judge Robert M. Levy in the Eastern District of New York ordered an adverse inference sanction and payment of attorneys’ fees for the plaintiff in a case due to spoliation of evidence after the court learned that no litigation hold was issued. The court deemed the plaintiff’s actions to constitute gross negligence […] ... continue reading

November 01, 2013

Massive Product Liability Tort Not Derailed by Spoliation Claim Due to Rule 37 ‘Safe Harbor’

In what is being characterized as one of the largest mass civil lawsuits, defendant Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) avoided sanctions due to the destruction of a key custodian’s email because it occurred prior to the trigger and in accordance with the company’s document retention policy. Chief Judge David R. Herndon provided a thorough analysis […] ... continue reading

September 26, 2013

PREX13 Recap – Leading E-Discovery Experts and Federal Judges Focus Recent Case Law, Rules Amendments, International Preservation and BYOD

The second annual Conference on Preservation Excellence (PREX13) was held September 18-19 in Portland, Oregon.  Attended by over 130 participants, the 2013 conference again drew praise by focusing on the importance of sound data preservation and best practices.  The goal for PREX each year is to bring some of the best minds in e-discovery together […] ... continue reading

September 26, 2013

Kansas Federal Court Finds No Prejudice as Grounds for Denying Spoliations Sanctions

A Magistrate Judge in Kansas recommended that since the plaintiff could not show prejudice from the defendants’ spoliation of ESI that the motion for an adverse inference be denied in Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013). The recommendation, which was adopted in full by the presiding […] ... continue reading

September 06, 2013

Just Published! Legal Hold and Data Preservation Benchmark Survey Finds Majority Are Still in ‘Adolescence’ of Preservation Process Maturity

We just published the landmark Legal Hold and Data Preservation Benchmark Survey 2013. Conducted by the Steinberg Group LLC, the survey measured the prevailing attitudes of 525 professionals who currently oversee legal hold processes, making it the largest study of its kind focused specifically on how organizations are currently handling legal data preservation. Some key findings […] ... continue reading

August 29, 2013

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs […] ... continue reading

August 29, 2013

Northern District of California Opinion Shows Judicial Restraint When Duty to Preserve Is Deemed ‘Not ‘Limitless’

By reading recent case law, it seems that there is no spoliation small enough for which a party will not file a motion for an adverse inference sanction. In AMC Technology, LLC  v. Cisco Systems, Inc., No.: 11-cv-3403 P, 2013 U.S. Dist. LEXIS 101372 (N.D. Cal. July 15, 2013), one such motion was denied when […] ... continue reading

July 28, 2013

Cox Communications Avoids Adverse Inference for Spoliation in Consumer Suit Due to Lack of Proof of Prejudice

In recent weeks there has been a spate of opinions weighing spoliation sanctions (i.e., Sekisui v. Hart, PTSI v. Haley) in which adverse inference instructions are specifically sought. Add Cottle-Banks v. Cox Communications, Inc., No. 10cv2133-GPC(WVG), 2013 U.S. Dist. LEXIS 72070 (S.D. Cal. May 21, 2013) to that list. The result handed down by U.S. […] ... continue reading

July 28, 2013

Slate of Proposed FRCP Amendments Approved for Public Comment on June 3

On June 3, 2013, the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure voted to approve the proposed amendments to the FRCP for public comment, a key step on their path toward adoption. As Law Technology News reported on June 6, 2013 in “Proposed Discovery Amendments Move to Public Comment:” […] ... continue reading

July 28, 2013

Colorado Court Deems Loss of ‘Key Player’s’ Evidence a Sanctionable Offense in Hart v. Dillon

A U.S. Magistrate Judge in Colorado found that the failure to preserve a recording by a key player after the duty to preserve attaches to be grossly negligent or willful behavior. As a result of this ruling, U.S. Magistrate David L. West (D. Col.) granted a motion for sanctions which are yet to be determined […] ... continue reading

July 28, 2013

Without Evidence of Prejudice, S.D.N.Y. Court Denies Sanctions Despite Spoliation of Evidence in Sekisui v. Hart

An opinion by U.S. Magistrate Frank Maas in the U.S. Southern District of New York may be a harbinger of how courts will evaluate spoliation cases in the coming years. In this case, whereas the plaintiff was found to be negligent with respect to actions to preserve relevant data, Judge Maas concluded the defendants failed […] ... continue reading

June 25, 2013

Proposed Rules Changes Seek to Standardize Sanctions for Spoliation

For those watching trends in electronic discovery, the debate about proposed amendments to the Federal Rules of Civil Procedure to address concerns over the rising costs of preservation and risk of spoliation sanctions have been under discussion for more than two years. The United States Courts’ Advisory Committee on Federal Rules has held numerous meetings […] ... continue reading

June 25, 2013

Solid Preservation Policy Turns Back Defendants’ Motion for Sanctions in New York

Not every spoliation motion results in sanctions, as was the case in Research Foundation of State Univ. of New York v. Nektar Therapeutics (N.D.N.Y. May 15, 2013).  In his opinion addressing several motions in the patent licensing dispute, Chief Judge Gary L. Sharpe denied Nektar’s motion seeking an adverse inference instruction and monetary sanctions “on […] ... continue reading

June 24, 2013

E-Discovery Experts Gather Last Week in Houston to Drill Into Preservation Challenges

This past week, we held another highly successful Mini-Conference on Preservation Excellence on June 19 in Houston, Texas (PREX-TX).  The half-day session focused on industry trends and best practices when it comes to data preservation and legal holds, and was led by two outstanding CLE program moderators, the Hon. Ron Hedges (former U.S. Magistrate Judge […] ... continue reading

June 24, 2013

Illinois District Court Hands Down Adverse Inference Sanction for Failure to Suspend Automatic Deletion of Data in ‘Bad Faith’

By Brad Harris On May 22, 2013, U.S. District Judge Joan H. Lekfow issued an opinion in Pillay v. Millard Refrigerated Services Inc. citing preservation failures done in bad faith as the court’s reasoning for granting a motion for an adverse inference instruction. The outcome reflects a number of recent cases nationwide including Kirgan v. […] ... continue reading

May 22, 2013

Kirgan v. FCA LLC – Rule 1: Preserve ESI When Litigation is Forthcoming. Rule 2: Don’t Mislead When Breaking Rule 1, or Sanctions Will Follow

In one of the more flagrant violations of the obligation to preserve, an employment case from Illinois is a clear illustration what is not a “culture of compliance.” In Kirgan v. FCA LLC, Case No. 10-1392, 2013 U.S. Dist. LEXIS 51747 (C.D. Ill. Apr. 10, 2013), the plaintiff had filed an EEOC claim contesting his […] ... continue reading

May 22, 2013

Google Not Given Safe Harbor Under Rule 37(e) for Failure to Preserve Past Versions

On April 2, 2013, U.S. Magistrate Paul Grewal in the Northern District of California issued an opinion in Dunbar v Google (2013 US Dist LEXIS 48630, N.D.Cal, April 2, 2013) that has the potential for far-reaching interpretation regarding the extent to which document revisions are subject to preservation. The nature of the case is the […] ... continue reading

May 22, 2013

PREX NY: Leading Experts Provide Updates on Latest Developments in Case Law and Preservation Best Practices

Following last September’s successful Conference on Preservation Excellence, or PREX for short,  Legal Hold Pro took the show on the road to New York on April 29, 2013. The half-day “mini-conference” was a highly successful due to a group of phenomenal speakers led by Paul Weiner (Littler Mendelson) and Robert Owen (Sutherland Asbill & Brennan […] ... continue reading

April 26, 2013

Arizona District Court Imposes Harsh Sanctions for Spoliation with a ‘Culpable Mind’ in Day v. LSI

What started out as a seemingly run-of-the-mill employment case quickly fell down the spoliation rabbit hole resulting in severe sanctions including partial default judgment, an adverse inference instruction and a $10,000 monetary award. The 29-page opinion by U.S. District Judge Cindy K. Jorgenson goes into great detail about the facts of the defendants’ preservation efforts […] ... continue reading

April 26, 2013

Adverse Inference Sanction Issued in N.J. Case Involving Spoliation of Facebook Data Is a Lesson on Social Media Disposition

An opinion from March in a personal injury case involving the deletion of a Facebook account is a good lesson for e-discovery professionals about the vulnerability of social media to irretrievable loss. U.S. Magistrate Steven Mannion ordered an adverse inference instruction to the jury after the plaintiff in Gatto v. United Air Lines was determined […] ... continue reading

March 20, 2013

Federal Circuit Overturns Adverse Inference Sanction for Spoliation in Adams. v. Dell

[Correction — This article has been corrected to show that the ruling was from the Federal Circuit, not the Tenth Circuit as originally reported. - Ed.] The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp. has been an ongoing saga with actions dating back to the 1990s. In recent […] ... continue reading

March 19, 2013

Two EEOC Discrimination Cases Lead to Serious Sanctions for ‘Inexcusable’ and ‘Careless’ Failures to Issue Litigation Holds Resulting in Spoliation

If you believe in coincidences, there was a significant one that occurred in February. Two Federal discrimination cases, EEOC v. JP Morgan Chase in the Southern District of Ohio (Sixth Circuit) and EEOC v. Ventura Corp. from the District of Puerto Rico (First Circuit), had rulings against defendants which were sanctioned for failing to preserve […] ... continue reading

March 19, 2013

Colorado Court Finds Negligence In the Case of the Missing Text Messages

Club owners and DJs going into business together may sound like a bad idea, and that notion was borne out in a recent Colorado case that involved an iPhone with text messages that had gone missing. District Judge R. Brooke Jackson issued a wide-ranging opinion in late January responding to seven motions; for the sake […] ... continue reading

February 18, 2013

Corporate Counsel Agenda Survey Shows Creating Culture of Compliance Is Among Top Concerns

A new national survey of corporate counsel released February 15 revealed that creating a culture of compliance is a top priority in 2013. The “Corporate Counsel Agenda 2013” survey published by ALM Legal Intelligence queried 126 GCs, Chief Legal Officers and deputy general counsels at companies with revenue ranging from more than $1 billion (43%), […] ... continue reading

February 18, 2013

New York and Delaware State Courts Address Preservation in New E-Discovery Rules

In the month of January, two influential state court systems introduced measures to improve the handling of electronic discovery that directly address the needs of litigants to improve data preservation. Both New York and Delaware are moving toward the standards outlined in the Federal Rules of Civil Procedure. The Delaware Court of Chancery adopted on […] ... continue reading

January 17, 2013

Gibson Dunn’s 2012 E-Discovery Report Includes Recap on Preservation Cases, Reform Efforts and Sanctions

Every January for the past few years, Gibson Dunn publishes an extensive summary of the key decisions in the area of electronic discovery. The 2012 edition was published on January 14 and for those interested in staying on top of the latest developments it is worthwhile reading. Following are a few highlights: Preservation (pp.25-27) As […] ... continue reading

January 16, 2013

Scope of Litigation Hold Extends to Independent Agents in New Jersey Ruling Resulting in Court Ordered Litigation Hold

An opinion out of the U.S. District of New Jersey weighed in on a gray area of data preservation when it ruled that “independent agents” were subject to the parent company’s preservation obligation and therefore required to receive a litigation hold. The case delved into issues pertaining to First American Insurance’s “possession, custody and control” […] ... continue reading

December 12, 2012

Just Published: ‘Legal Hold and Data Preservation Best Practices’ Provides Practical Tips from Experts on Preservation

Legal Hold and Data Preservation Best Practices is the most current and complete guide about preservation today. Developed in concert with some of the most respected names in electronic discovery and in-house practitioners, the Guide reflects a level of dialogue and depth of discussion on litigation holds and data preservation that is unprecedented. DOWNLOAD YOUR COMPLIMENTARY COPY […] ... continue reading

December 12, 2012

Top 10 Preservation Opinions of 2012

The pace of sanction cases continued unabated during 2012. The interesting development is that during 2012 the opinions were issued much more broadly than in past years, with key cases from the Western states as well as state courts. An interesting new twist is that several courts issued sanctions for preservation failures even when ESI […] ... continue reading

December 11, 2012

New Proposed Rule Changes Focus on Appropriate Sanctions for Spoliation

By Brad Harris On November 2, 2012, the Discovery Subcommittee reached consensus to forward a rule proposal to the Standing Committee, with a recommendation that it be published for public comment in August 2013.  This effort stems from work first started by the E-Discovery Panel at the Duke Conference in May 2010, and included a […] ... continue reading

October 25, 2012

‘Lackadaisical’ Litigation Holds by Federal Government Undermines Medicaid Fraud Case

By Brad Harris In a ruling that will have defense lawyers licking their chops, U.S. District Judge William P. Johnson on October 3 upheld U.S. Magistrate Alan C. Torgerson’s opinion when the Court unequivocally overruled objections regarding spoliation sanctions due to an inadequate litigation hold process. Department of Justice lawyers were attempting to overturn Judge […] ... continue reading

October 24, 2012

Scentsy v. B.R. Chase: Whiffs of Spoliation from Plaintiff in Idaho Case Causes Court to Take Action

By Brad Harris Earlier this month, Chief Judge B. Lynn Winmill (D.Idaho) issued a court order against Scentsy Inc., the plaintiff in a copyright infringement case between two scented candle makers, for failing to issue a litigation hold and inadequate retention policies. While the court determined that spoliation was unlikely, it took the matter seriously […] ... continue reading

October 01, 2012

Hynix v. Rambus: Rambus’s $397M Judgment to Be Lowered Due to Revised Consideration of Trigger Event

In what feels like the never-ending story, a new chapter on the long-running patent infringement case between Hynix and Rambus opened with a ruling by U.S. District Judge Ronald M. Whyte (N.D. Cal.) on September 21, 2012. The court’s latest opinion, following nearly 7 years after the original trial, is likely to reduce dramatically the […] ... continue reading

October 01, 2012

PREX12 Recap – The Four Overarching Themes That Emerged at the Conference on Preservation Excellence

The 2012 Conference on Preservation Excellence (PREX12) was held September 27-28 in Portland, Ore., and proved to be an event that raised the bar on data preservation. With more than 100 attendees, the level of dialogue and depth of discussion on litigation holds and data preservation was unprecedented. The goal of the conference and all […] ... continue reading

August 15, 2012

Conference on Preservation Excellence Adds Distinguished Judicial Panel

The 2012 Conference on Preservation Excellence announced today the addition of a judicial panel for a session called “The View from the Bench on Preservation.”  The session will feature the following judges: Hon. Paul S. Grewal, U.S. Magistrate Judge, U.S. District for the Northern District of California and who recently wrote Apple, Inc. v. Samsung […] ... continue reading

August 03, 2012

Apple v. Samsung: Lack of Custodian Follow-Up and Failure to Suspend Auto-Deletion of Email Equals Adverse Inference

The stakes could hardly be higher than the multi-billion dollar design patent trial between high tech titans Apple and Samsung – both are among the top 30 largest global companies. Apple’s iPhone invented the smart phone category and this suit alleges that Samsung copied the iPhone’s design in violation of its patents. With hundreds of […] ... continue reading

July 26, 2012

Conference on Preservation Excellence to Debut September 27-28, 2012 in Portland, Ore.

National e-discovery leaders and in-house practitioners gather for first conference to focus on legal preservation that will provide practical advice for reducing the burden of preservation The 2012 Conference on Preservation Excellence, the first conference focused exclusively on improving the legal preservation process, will be held September 27-28, 2012, in Portland, Oregon. The Conference’s goal […] ... continue reading

July 17, 2012

Chin v. Port Authority: Second Circuit Seemingly Rejects Pension Committee’s Standard for Gross Negligence. But Really It Doesn’t.

By Brad Harris The latest noteworthy decision regarding spoliation sanctions stemming from preservation failures emerged out of the Second Circuit Court of Appeals on July 10, 2012. In Chin v. Port Authority of New York New Jersey, a counter-claim by plaintiff Howard Chin sought a spoliation sanction of an adverse inference instruction due to the […] ... continue reading

July 11, 2012

eDiscovery Journal Looks at the Latest Trends in Legal Hold Management

E-Discovery Journal’s Mikki Tomlinson wrote about her recent experiences in overseeing a RFI process for a major corporate client. Her candor in “What’s Trending in Legal Hold Management?” from July 10 provides some timely insights into the current trends in legal hold technology based on the combination of an in-depth reviews of more than a […] ... continue reading

July 11, 2012

Motion for Spoliation Sanctions Falters When Plaintiff’s Wishful Thinking Doesn’t Become Reality

Our friend Josh Gilliland at Bow Tie Law recently recounted a ruling that offered a new twist on the motion for spoliation sanctions. In Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, (3d Cir. N.J. June 20, 2012) out of U.S. Court of Appeals, Third Circuit, the Plaintiff appealed a District Court’s denial of a […] ... continue reading

July 10, 2012

New Edition of Federal Judiciary Center Pocket Guide on E-Discovery Reflects Growing Focus on Preservation

The Federal Judiciary Center recently published the second edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges. This 48-page guide follows the first edition from 2007 and is a good measure of how preservation has evolved during the intervening five years. The fact that the Pocket Guide doubled in length owes to […] ... continue reading

July 10, 2012

Despite No Evidence of Spoliation, Court Orders Up to $70K in Sanctions for Preservation Failures Anyway

By Brad Harris A District Judge in New Jersey upheld the opinion of a Magistrate’s finding of sanctions on appeal in a liability case out of U.S. District of New Jersey – despite the fact that no evidence of spoliation was concretely found. We first learned about this from Scott Etish’s post at E-Discovery Law […] ... continue reading

May 30, 2012

E-Discovery Leaders Describe Challenges of Getting Preservation and Legal Holds Right

An all-star panel from the e-discovery world gathered at the New York City Bar Association on May 17, 2012, to discuss the challenges faced in different roles when it comes to issuing legal holds and managing preservation. The event, “Four Perspectives on Preservation and Proportionality,” was organized by Legal Hold Pro and featured U.S. Magistrate […] ... continue reading

May 29, 2012

Alabama Opinion Denies Motion for Spoliation Sanctions Due to Defendant’s ‘Good Faith’ Legal Hold Efforts

A recent opinion from the Middle District of Alabama (M.D. Ala.) demonstrates the importance of having a sound litigation hold process in place to avoid sanctions for failure to preserve electronic information. We first read about this case in A Spoliation Ace in the Hole which appears in Cozen O’Connor’s E-Discovery Law Review. In Danny […] ... continue reading

May 28, 2012

New York State Supreme Court Dismisses Case Due to Spoliation from Ineffective Litigation Hold Process

In a legal malpractice case dating back to 2008, a Plaintiff had a $20 million claim dismissed outright due to ESI lost resulting from a legal hold that was completely ineffective. In 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), which we […] ... continue reading

May 16, 2012

Zapproved Partners with Nuix to Launch Legal Hold Solution

Nuix, a worldwide provider of information management technologies, and Zapproved Inc., developers of Legal Hold Pro™, announced a technology partnership to introduce Nuix Legal Hold.  Nuix Legal Hold is a cloud-based legal hold notification and compliance tracking system that works with Nuix collection and eDiscovery solutions.  Nuix Legal Hold is built on Legal Hold Pro, […] ... continue reading

April 24, 2012

Pouncil v. Branch Law Firm – A Reminder that Law Firms Need to Get With the Times on Issuing Legal Holds

LeClairRyan’s Dennis Kiker posted on April 23 about a new opinion from U.S. Magistrate Judge David Waxse that illustrates the importance for law firms to have their preservation efforts in order (just like their clients). In Pouncil v. Branch Law Firm (Case No. 10-1314-JTM-DJW, D. Kan. Mar. 7, 2012), the law firm was involved in […] ... continue reading

April 24, 2012

Thin Guidance from JETWG on Preservation of Digital Evidence in Criminal Cases

To date almost every discussion surrounding preservation of electronic evidence has focused on civil cases, despite the routine use of digital evidence in criminal matters. The influential U.S. District Judge Shira A. Scheindlin and Jeffrey Rabkin published Criminal Law Catches Up: New ESI Guidelines Issued in the New York Law Journal which recaps the Recommendations for […] ... continue reading

April 17, 2012

Research Alert: Our Four Big Takeaways from RAND Study That Zeroes In On Preservation as a Major Pain Point

By Brad Harris The RAND Institute for Civil Justice (ICJ) published an interesting study last week focusing on the costs of electronic discovery in civil litigation. The 131-page report Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery offers some great insights into the costs of discovery, and perhaps more importantly, the current […] ... continue reading

March 29, 2012

Event Alert: Legal Hold Pro Presents ‘Four Perspectives on Preservation and Proportionality’ in New York on May 17 with Distinguished Panel

Four Perspectives on Preservation and Proportionality: The Judge, The GC, Plaintiffs’ Counsel and Defense Counsel Date:   Thursday, May 17 Time:  8:30 to 10:00 a.m. Location:  New York City Bar Association Building, 42 W. 44th St., New York, NY Cost:  Complimentary, but space is limited. Reservation required. CLE Credit:  Pending for NY PROGRAM OVERVIEW  Legal Hold Pro is […] ... continue reading

March 12, 2012

Three Lessons from Perez v. Vezer Industrial: 1) Legal Holds Are Necessary Regardless of Org. Size; 2) Don’t Inflate Your Costs; and 3) Don’t Let Satan Drive

In late 2011, an opinion out of the Eastern District of California reaffirms that even if a company is small, size cannot be an excuse for failing to issue a litigation hold to preserve electronic data.  The opinion by U.S. Magistrate Carolyn K. Delaney in Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. […] ... continue reading

February 21, 2012

New York Appeals Court Upholds Zubulake Legal Hold Standard in Voom v. EchoStar Resulting in Adverse Inference Instruction

Voom HD Holdings LLC v. EchoStar Satellite LLC, 2012 NY Slip Op 00658 (January 31, 2012) A unanimous opinion out of a New York state appellate court in the Voom v. EchoStar is the first case at this level to explicitly uphold the standards set forth by U.S. District Judge Shira Scheindlin in Zubulake and […] ... continue reading

February 15, 2012

New Study Points to Need for Change in How Government Agencies Manage E-Discovery

IE Discovery just published its 2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies and it seems like “times they are a-changin,’” to quote the inimitable Bob Dylan. In-house legal teams at the Federal level are starting to feel the same pain as their counterparts about the rigors of preservation and electronic discovery. This […] ... continue reading

February 08, 2012

LegalTech 2012: Don’t Take Your Eyes Off of the Preservation Ball (Or Four Reasons Why Predictive Coding Isn’t for Everyone)

Last week we celebrated the annual rite of passage that is LegalTech New York. By all accounts it was a successful year with record attendance, bustling Exhibit Halls and non-stop presentations. Leading up to the conference, Law Technology News wrote about the expected buzzwords which pointed to “predictive coding” (a.k.a. “technology assisted review”), “social discovery,” […] ... continue reading

February 08, 2012

Legal Hold Pro Adds Collection Tracking Capability to Enhance Your Preservation Workflow

We have exciting news! Legal Hold Pro can now initiate and track collection tasks associated with a legal hold. After notifying custodians of a duty to preserve, a legal team often needs to take additional steps such as suspending auto-deletion in an email archive or triggering a data collection. With this new capability, Legal Hold […] ... continue reading

February 08, 2012

Legal Hold Pro Introduces Law Firm Advantage Edition that Provides New Way to Collaborate with Clients on Preservation Efforts

Last week at LegalTech NY, we introduced a set of new features so law firms can work with clients to deploy the fastest growing legal hold notification and compliance tracking system. Since Legal Hold Pro is web-based, law firms can immediately utilize the tool with clients without the need to install, configure or maintain software. […] ... continue reading

February 08, 2012

Zapproved Appoints Hon. Robert J. Cindrich (Ret.) to Board of Directors

We are proud to announce that  our Board of Directors has voted to appoint Hon. Robert J. Cindrich (Ret.) to the Board. Cindrich served as a Federal judge in the U.S. District Court for Western Pennsylvania for 10 years and currently serves as Senior Advisor to the Office of the President at the University of […] ... continue reading

January 26, 2012

Come See What’s New with Legal Hold Pro at LegalTech from Jan. 30 to Feb. 1

LegalTech is right around the corner with the show kicking off on Monday, January 30, and continuing through Wednesday, February 1, at the Hilton New York. Legal Hold Pro will be  exhibiting and rolling out some exciting new enhancements to our industry leading legal hold management system. If you are planning to attend, come see […] ... continue reading

December 16, 2011

Georgetown 2011 Recap: Three Takeaways on Preservation

We were honored once again to sponsor the Georgetown Law Center 8th Annual Advanced eDiscovery Institute which took place November 17-18 in Pentagon City, VA. This conference is an annual highlight because of the outstanding quality of the panels, which include many of the country’s most influential jurists.  We were also pleased to have contributed […] ... continue reading

December 16, 2011

Subsequent Briefs in Pippins v. KPMG Provide Further Insights into Dispute Over Hard Drive Preservation

By Brad Harris In our recently published white paper, Preservation and Proportionality, Ron Hedges and I solicited input from industry thought leaders on the current debate over the rising costs of data preservation and the call for proportionality through cooperation, court order or rule changes.  A particularly relevant opinion was issued from the Southern District […] ... continue reading

December 12, 2011

NACCO v. Lilly: Spoliation Sanctions in Tennessee Case Shows Ongoing Challenge of Preservation

By Brad Harris We just learned of another preservation case involving sanctions but what makes this one stand out is that the litigation started in 2011 – after Pension Committee, Rimkus, Victor Stanley II, and the other opinions showing the courts’ focus on preservation issues. This case out of the Western District of Tennessee, which […] ... continue reading

November 16, 2011

Just Published! ‘Preservation and Proportionality’ Solicits Opinions on How to Handle Preservation in the Post-Pension Committee World

Today we are announcing the publication of “Preservation and Proportionality: Perspectives on Lowering the Burden of Preserving Data in Civil Litigation,” a 36-page white paper that offers a comprehensive resource in the ongoing discussion around best practices for data preservation. “Preservation and Proportionality” is edited by our Brad Harris and Ron Hedges, a former United […] ... continue reading

October 17, 2011

New S.D.N.Y. Ruling in Pippins v. KPMG Focuses on Proportionality in Preservation

By Brad Harris Pippins v KPMG, 2011 WL 4701849 (S.D.N.Y.) October 7, 2011 U.S. Magistrate Judge James L. Cott from the influential Southern District of New York (S.D.N.Y.) released an interesting opinion in early October that reflects on an emerging question: Should the principles of proportionality as articulated in FRCP Rule 26(b)(2)(c) apply to a […] ... continue reading

October 07, 2011

New Jersey Company Found Grossly Negligent for Inadequate Legal Hold

N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., September 21, 2011) On September 21, 2011, a new ruling out of New Jersey highlighted the intolerance of the courts for improperly implemented litigation holds.  In N.V.E. v. Palmeroni,  U.S. District Judge Esther Salas imposed monetary […] ... continue reading

October 06, 2011

Four Takeaways from the Dallas Mini-Conference on Preservation and Sanctions

By Brad Harris Last month, the Advisory Committee on Civil Rules called together a mini-conference to solicit greater insight in the nature and scope of the preservation problem, including how technology is contributing to the issue and how rule changes might help address the problem. Held under the auspices of the Discovery Subcommittee, the Mini-Conference […] ... continue reading

August 24, 2011

Webinar: “Partners in Preservation: How Law Firms Can Help Clients Avoid E-discovery Sanctions” on Sept. 20

REGISTER NOW! Over the last 18 months, data preservation for discovery has been in the spotlight like never before. One important aspect is the emphasis that several courts have are put on the obligation of outside counsel to oversee the preservation process. Many counsel are now taking a much more active role to help ensure […] ... continue reading

August 24, 2011

Webinar: “Data Preservation and Legal Holds: Best Practices and New Technology” on Sept. 13

REGISTER NOW! It has been nearly eight years since Judge Shira Scheindlin issued the Zubulake opinions that set the course for modern eDiscovery. Last year, she issued her notable Pension Committee ruling that reinforced considerations for reasonable and good faith expectations when responding to a duty to preserve, which set off a chain reaction of other […] ... continue reading

August 19, 2011

Legal Holds Feature in Gibson Dunn’s 2011 Mid-Year E-Discovery Report

Since the law firm Gibson Dunn started covering electronic discovery rulings in its twice-per-year reports, they have become a “go to” resource for practitioners.  The team at Gibson Dunn recaps notable cases and organizes the report so that key trends are highlighted and they recently released the 2011 Mid-Year E-Discovery Report. In the first half […] ... continue reading

August 16, 2011

The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation after Issuing Weak Legal Hold

by Brad Harris In July, we posted about the DuPont v. Kolon opinion in April which was noteworthy in that DuPont escaped any sanctions in spite of spoliation by having a strong preservation plan in place.  The Eastern District of Virginia’s Senior District Judge Robert E. Payne issued a subsequent ruling on July 21 responding […] ... continue reading

July 28, 2011

Webinar: “Data Preservation 2011 – Looking at How Your Company Can Be State-of-the-Art” on August 3rd

Register Here:   https://www2.gotomeeting.com/register/368826627 TERIS and Legal Hold Pro present a one-hour seminar on optimizing legal preservation in 2011 when the courts’ expectations have never been higher and e-discovery practices are being scrutinized by opposing counsel.  New opinions such as Haraburda v. Arcelor Mittal, Dupont v. Kolon and Green v. Blitz USA are continuing to put the spotlight on what companies should and shouldn’t […] ... continue reading

July 18, 2011

Haraburda v. Arcelor Mittal: Court Orders Litigation Hold After Defendant Attempts to Delay Until after ‘Meet and Confer’

Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) An opinion in late June from the Northern District of Indiana firmly reiterated the need for a legal hold and shot down one litigant’s attempts to postpone its timing until after the Rule 26(f) meeting.  That strategy […] ... continue reading

July 12, 2011

DuPont v. Kolon: DuPont Avoids Sanctions by Maintaining Legal Hold Practices

8/16 UPDATE: See subsequent blog post: The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation After Issuing Weak Legal Hold (8/16/2011) E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. LEXIS 45888 (E.D. Va. Apr. 27, 2011) In an opinion from late April, Sr. […] ... continue reading

June 19, 2011

Webinar: “A Compelling Need for Change in Legal Hold Practices” with Charlotte Riser Harris and Brad Harris

Charlotte Riser Harris, Litigation Support Manager for Hess Corporation, and Brad Harris, leading national  preservation expert and VP for Legal Products at Zapproved (no relation to Charlotte), team up for a one-hour webinar designed to help in-house legal teams adapt to the latest preservation standards. The content is adapted from their co-authored article that appeared in […] ... continue reading

June 07, 2011

Some Say Courts Don’t Agree with Pension Committee – But Is That Really the Case?

By Brad Harris The preservation landscape appears to be settling down considerably compared to the turbulent year that was 2010. (If you need a refresher, see Pension Committee Revisited white paper and webinar for a complete recap.) A few opinions have come up in recent months that provide additional insight into how the courts are […] ... continue reading

April 14, 2011

National Law Journal: “Until Next Rules Change, 2010 Cases Set the Standard” by Brad Harris and Ron Hedges

On the heels of their successful Pension Committee Revisited project, our own Brad Harris and Ron Hedges collaborated once again on a contributed article that appears in the April 11 edition of the National Law Journal.  The article, “Until Next Rules Change, 2010 Cases Set the Standard,” examines the state of preservation today based on recent […] ... continue reading

April 04, 2011

Two Cases Feature Extreme Sanctions for Preservation Failures; Both Cite a Failure to Issue a Legal Hold as Key Factor

By Brad Harris Since Judge Francis’s Orbit One in October 2010, we haven’t read a lot about preservation issues. But that ended suddenly with two opinions that had come to light in recent weeks. If the building case law has not been convincing enough, then take note of these sanctions that turn up the heat […] ... continue reading

March 27, 2011

‘Legal Holds and Healthcare’ Webinar on March 30 with National Experts Brad Harris and Ken Rashbaum

Leading national experts Brad Harris and Ken Rashbaum present a one-hour program that will help any legal practitioner working in the healthcare industry. The presentation will review recent case law and its impact on preservation, look at trends in the healthcare sector and what they mean. Harris and Rashbaum then will provide recommendations for ‘best practices’ so that you will be ready when the […] ... continue reading

March 08, 2011

“Pension Committee Revisited: Where Do We Go From Here?” Webinar Features 10 E-Discovery Leaders on March 22

  “Pension Committee Revisited: Where Do We Go From Here?” is a complimentary two-hour program hosted by Brad Harris, VP for Legal Products at Zapproved, and former U.S. Magistrate Judge Ron Hedges. The program brings together a group of the best minds in electronic discovery to discuss the impact of Pension Committee one year later. The panel […] ... continue reading

February 18, 2011

Legal Hold Pro Meets the Press – February 2011 Edition

Since we have been enjoying a little attention from the press recently, we are posting a few items that have appeared during the last two weeks.  We hope you find them interesting! Pension Committee: Looking Back at a Look Back, LTN, February 15, 2011 – ALM’s editorial director for technology David Snow provides his thoughts […] ... continue reading

January 18, 2011

Just Published! “Pension Committee Revisited” edited by Brad Harris and Ron Hedges

We are proud to announce the publication of Pension Committee Revisited: One Year Later, a 42-page white paper published to mark the one-year anniversary since Judge Shira A. Scheindlin issued her landmark opinion. Pension Committee has focused the legal community on issues surrounding the preservation of electronic data involved with litigation. “Pension Committee Revisited” is edited by […] ... continue reading

December 06, 2010

Orbit One v. Numerex: Magistrate Judge Francis Offers His View on Legal Holds

By Brad Harris Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y., Oct. 26, 2010) In late October, Magistrate Judge James Francis issued an opinion that has continued the judicial debate about legal holds and other preservation practices kicked off in January 2010 with Pension Committee. Judge Francis in Orbit One openly disagrees […] ... continue reading

November 19, 2010

Rush Transcript: Judge Scheindlin Defends Pension Committee by Saying “Just Do It!” to Legal Holds

The Georgetown Law Center’s Advanced E-Discovery Institute is a highlight on the calendar every year.  The conference kicked off yesterday (Nov. 18) at the Ritz-Carlton in Pentagon City, VA, with an e-discovery case law update that involved a panel of many preeminent jurists.  The panel was moderated by The Sedona Conference’s Ken Withers and included […] ... continue reading

October 18, 2010

New “General Counsel Survey” Shows Growing Legal Hold Gap

The University of Denver’s Institute for the Advancement of the American Legal System (IAALS) recently published the results of an extensive survey it conducted with GCs around the country.  The sample size is impressive which gives weight to the survey with 485 valid responses by ACC members with titles of General Counsel or Chief Legal […] ... continue reading

September 30, 2010

Harris and Ball Present “The Enlightened Legal Hold” Webinar on October 12

This complimentary one-hour program is presented by leading e-discovery experts Brad Harris and Craig Ball. They will offer a fresh approach to legal holds following the Pension Committee opinion which they first outlined in the white paper that they co-authored which you can download at www.legalholdpro.com/enlightened. Harris and Ball will examine the “Five Deadly Sins of Legal Holds” that […] ... continue reading

September 16, 2010

The Sedona Conference Publishes Updated Legal Hold Commentary

by Brad Harris This week The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) issued an updated Commentary on Legal Holds, reflecting evolving case law and best practices since 2007.  The document remains an exemplary resource for practitioners charged with determining when a legal obligation to preserve data arises (the “trigger”) and […] ... continue reading

September 13, 2010

Victor Stanley II: Judge Grimm’s Review of the State of Preservation

by Brad Harris On Thursday, September 9, 2010, Judge Paul Grimm of the U.S. Fourth Circuit (D.MD) continuedthe 2010 tradition of huge opinions with his 89-pager about the ongoing spoliation saga in Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010). Craig Ball was the first to get the word out […] ... continue reading

August 24, 2010

“The Enlightened Legal Hold” by Brad Harris and Craig Ball Is Published Today!

We are proud to announce that “The Enlightened Legal Hold: A New Approach to Legal Preservation Following the Pension Committee Opinion” co-authored by Brad Harris and Craig Ball was published today. The latest white paper in the Legal Hold Pro™ Signature Series examines issues that have caused problems for litigants and offers a new way […] ... continue reading

August 20, 2010

Trendspotting in Legal Holds, Part 2 – The 2010 Socha-Gelbmann Electronic Discovery Survey

This is the second part of our look at two major reports on the electronic discovery sector that were released within the last month. You can read Part 1 about the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update that was posted Tuesday. Today we analyze The 2010 Socha-Gelbmann Electronic Discovery Survey […] ... continue reading

August 17, 2010

Trendspotting in Legal Holds, Part 1 – Gibson Dunn Mid-Year E-Discovery Update

Two major reports on the electronic discovery sector were released within the last month.  The first is the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update in mid-July followed by The 2010 Socha-Gelbmann Electronic Discovery Survey at the beginning of August. It is interesting to see in both reports – of case […] ... continue reading

August 13, 2010

‘Small Corporation’ Gets $10,000 Sanction for Spoliation Resulting from Lack of Written Hold

By Brad Harris Passlogix, Inc.v.2FA Technology LLC, et al., 2010 WL 1702216 (S.D.N.Y., April 27, 2010) An interesting case appeared from New York’s Southern District that saw some egregious behavior by the defendant to purposefully undermine the discovery process. In fact, the court characterized the defendant’s outrageous tactics were undertaken “in an effort to expand discovery, […] ... continue reading

July 02, 2010

Coming Soon to Silicon Valley! “Hold Fast” CLE on July 15th

You are invited to join D4 and Legal Hold Pro for a complimentary lunch program and earn 1.0 MCLE credit approved by the California State Bar Association. Thursday, July 15, 2010 Four Seasons Hotel Silicon Valley 2050 University Avenue East Palo Alto, CA Registration at 11:30 a.m. with lunch being served at 12:00 p.m. Space […] ... continue reading

June 10, 2010

Northern District of Illinois Makes Its Own Way with Opinion Echoing Need for Strong Legal Holds

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) By Brad Harris On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the […] ... continue reading

June 03, 2010

Judge Scheindlin Gives Pension Committee a Minor Tune-Up

By Brad Harris For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a […] ... continue reading

May 26, 2010

“D&O Litigation Landmine: Legal Holds” Webinar on June 3

Spoliation is a scary word; the consequences for directors and officers are even scarier.  No longer will judges give companies a “free pass” for failing to properly implement a litigation hold in the face of reasonably anticipated litigation or government investigation.  A slew of recent cases shows just how devastating an improperly designed or executed litigation […] ... continue reading

May 07, 2010

The Drumbeat Continues: Judge Turns Up the Heat with $25,000 Sanction

By Brad Harris Merck Eprova AG v. Gnosis S.p.A. et al., 07 Civ. 5898 (S.D.N.Y. Apr. 20, 2010) On April 20, 2010, U.S. District Judge Richard Sullivan hammered home the need for proper legal holds in a big way.  In a case that not only echoes Judge Scheindlin’s Pension Committee opinion, but takes it a […] ... continue reading

April 27, 2010

Second Verse Same as the First: Failure to Issue a Legal Hold is Gross Negligence

By Brad Harris Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010) Our friend Josh Gilliland of the Bow Tie Law blog posted last week about an important case out of the Western District of New York involving litigation holds.  (I highly recommend that you check out Josh’s entertaining […] ... continue reading

April 13, 2010

TechnoLawyer Review: Legal Hold Pro Earns 4.8 Rating (Out of 5)

Our first official product review was published today and we couldn’t be more pleased!  TechnoLawyer, a popular legal technology and practice management resource that consists of a network of free, critically-acclaimed e-mail newsletters, published an in-depth review of Legal Hold Pro written by Bruce Olson, President of ONLAW Trial Technologies. The article provides a detailed […] ... continue reading

February 25, 2010

Rimkus v. Cammarata: Another Great Reason Organizations Need an Effective Legal Hold Process

By Brad Harris Coming on the heels of Judge Shira Scheindlin’s Pension Committee v. Banc of America Securities opinion in January, a opinion was issued that centers around appropriate actions to preserve potentially relevant evidence.  The case is Rimkus Consulting Group Inc. v. Nickie G. Cammarata, et al., 07-cv-00405 (SDTX Feb. 19, 2010) out of […] ... continue reading

February 24, 2010

“Arkfeld on Legal Holds” Webinar on Feb. 26th

D4, LLC and Legal Hold Pro present a one-hour program featuring Michael Arkfeld, Esq., author of Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of U.S. District Judge Shira Scheindlin’s recent Pension Committee v. Banc of America Securities opinion. The webinar […] ... continue reading

February 19, 2010

2010 – The Year of the Legal Hold

We were excited about attending LegalTech earlier this month, but nothing could have prepared us for the response we received. Legal Hold Pro built a buzz as evidenced by comments from industry analyst Brian Babineau of ESG said “the best vendor/solution I saw at LegalTech was Legal Hold Pro… It’s a no-brainer for companies!!” In […] ... continue reading

February 11, 2010

Corporate Counsel: “How Companies Have to Handle Legal Holds”

Brad Harris, our Director of Legal Products, and John Jablonski, Partner at Goldberg Segalla and legal hold expert, today published a by-lined article on Corporate Counsel magazine’s web site.  The article offers advice to in-house legal teams about the implications of Judge Scheindlin’s recent Pension Committee opinion. Brad and John offer timely information that analyzes […] ... continue reading

February 05, 2010

Legal Hold Pro Called the “Best Vendor/Solution” at LegalTech 2010

Our team just returned from LegalTech New York after an exhilarating week in which we were able to make a big splash about Legal Hold Pro to the legal industry.  We believe we have the right solution — namely a cloud-based legal hold management system — at the right time. Brian Babineau, a Senior Analyst […] ... continue reading

February 04, 2010

Just Published! An in-depth analysis of Judge Scheindlin’s Pension Committee Opinion

“The analysis of Judge Scheindlin’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to […] ... continue reading

January 19, 2010

“12 Myths about Legal Holds” Webinar on January 26 covers Zubulake to Judge Scheindlin’s Latest Opinion

Program Overview: The one-hour program will examine common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion. John Jablonski and Brad Harris will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it […] ... continue reading

January 14, 2010

FLASH UPDATE! Judge Scheindlin Strongly Reiterates Need for Written Hold Notification

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 11, 2010) Starting with the intro of her opinion, Judge Scheindlin invokes Santayana’s famous saying that “those who cannot remember the past are condemned to repeat it.”  This ominous start is […] ... continue reading

January 11, 2010

“12 Myths about Legal Holds” Is Now Available!

Today we released a new white paper titled “12 Myths about Legal Holds” authored by Brad Harris, the company’s new Director of Legal Products.  The first paper in the Legal Hold Pro™ Signature Series is available immediately at no cost at www.legalholdpro.com/myths. The 12-page publication zeroes in on common misconceptions about litigation holds that are […] ... continue reading

December 03, 2009

If You Don’t Issue a Hold, Now the Court May Do It for You

Synventive Molding Solutions v. Husky Injection Molding Systems, 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009) A recent case out of the U.S. District Court of Vermont may be the next seminal case for legal holds as the judge  clarified several ambiguous points around legal holds.  Judge Conroy’s opinion and order for Synventive […] ... continue reading

December 03, 2009

Florida Court Sanctions In-house Counsel for Spoliation Resulting from Poor Legal Hold

Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009) This case started under confusing circumstances which resulted in Robert Swofford being shot seven times in his home by sheriff’s deputies in Orlando. After he recovered, he sued the sheriff’s office for negligence. Now, David Lane, the GC for the Seminole County Sheriffs Office is taking […] ... continue reading

August 18, 2009

Legal Hold Pro Alert: Pinstripe v. Manpower, Major Tours v. Colorel

A pair of recent rulings have shed additional light on the need for a strong, defensible legal hold implementation.  The two cases illustrate how the courts are intolerant when defendants are ignorant of the legal hold process: Pinstripe, Inc. v. Manpower, Inc. (7/29/09) – An un-issued legal hold and “good faith” efforts still yield sanction. […] ... continue reading

September 02, 2014

Clarifying the Law of the Land for Preservation in the Sixth Circuit

Automated Solutions Corp. v. Paragon Data Sys., Inc., No. 13-3025/3058, 2014 WL 2869286 (6th Cir. June 25, 2014) The case arose from a contract involving the development of delivery- and subscription-tracking software for the Chicago Tribune. The relationship between the parties deteriorated, and the defendant Paragon terminated the contract. The plaintiff, Automated Solutions Corp. (ASC), […] ... continue reading

August 21, 2014

Zapproved Is No. 289 on the 2014 Inc. 500 List of Fastest-Growing U.S. Private Companies

Inc. magazine ranked Zapproved No. 289 on its 33rd annual Inc. 500|5000, an exclusive ranking of the nation’s fastest-growing private companies. Zapproved also ranked No. 24 in the category of fastest growing software companies in the nation, ranked No. 5 on the list of Oregon’s top growing private companies and No. 4 on the Portland […] ... continue reading

August 13, 2014

Zapproved Predicts Reaching the Tipping Point for Automated Data Preservation By 2015

Second Annual Survey Reveals Trends Towards Automating Data Preservation and the Risks and Concerns Facing Legal Professionals The 2014 Legal Hold and Data Preservation Benchmark Survey, the largest survey conducted in the area of electronic discovery, identifies several key findings that show a significant shift toward more automation in litigation holds resulting in higher confidence […] ... continue reading

July 30, 2014

Texas Supreme Court Overturns Case Based on Spoliation Instruction to Jury

Brookshire Bros., Ltd. v. Aldridge, –S.W.3d–, 2014 WL 2994435 (Tex. July 3, 2013) On July 3, the Supreme Court of Texas issued a significant opinion in clarifying appropriate sanctions for spoliation. The ruling removes discretion of trial judges to administer sanctions by only permitting jury instructions when the spoliation was intentional or deprived opposing party […] ... continue reading

July 24, 2014

What Is the Extent of Counsel’s Obligation to Ensure Clients Preserve Data?

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13cv825 (E.D. Va. 2014) Spoliate once, shame on the client; however, spoliate two or more times, shame on the client’s counsel. At least, that seems to be the likely outcome of a dispute over attorneys’ fees and costs currently pending before the Eastern District of Virginia. In […] ... continue reading

July 24, 2014

Discovery Cannot “Go Smoothly” When Counsel Do Not Exercise Proper Oversight Into Preservation

Brown v. Tellermate Holdings Ltd., No. 2:11-cv-1122, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014) To put it mildly, “[d]iscovery did not go smoothly” in Brown v. Tellermate Holdings Ltd., an age discrimination case stemming from the termination of the plaintiffs’ employment. According to the court, “significant problems arose in this case for […] ... continue reading

July 24, 2014

Company That Failed to Issue Litigation Hold for Three Years Suffers Adverse Inference

Osberg v. Foot Locker, No. 07-cv-1358 (KBF), 2014 U.S. Dist. LEXIS 95543 (S.D.N.Y. July 14, 2014) In Osberg v. Foot Locker, an ERISA matter, the plaintiffs filed a motion seeking sanctions for spoliation alleging that the defendants had destroyed documents. Despite several pending lawsuits involving similar issues against the defendants that were filed as early […] ... continue reading

June 04, 2014

A Party’s Failure to Preserve Invites Judicial Intervention

A magistrate judge recently ordered intrusive measures to rectify a plaintiff’s inadequate, self-directed search for ESI in Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2014 WL 800468 (S.D. Fla. Feb. 28, 2014). The deficiencies included the following: failure of plaintiff’s counsel to travel to Colombia to meet with the client’s IT personnel about the relevant […] ... continue reading

June 04, 2014

A Cautionary Tale About E-Discovery Sanctions

When one defendant turned against the others in Pacific Packaging Products, Inc. v. Barenboim, No. 09-4320, Mass. Super. Ct., a Massachusetts Superior Court judge turned against all of them. Judge Bruce Henry ordered default judgments, dismissed counterclaims, and ordered the payment of attorneys’ fees upon discovering the defendants in this trade secrets case had committed […] ... continue reading

May 20, 2014

Event Notice — Upcoming PREX Symposiums and User Group Meetings in Palo Alto and Chicago

Please join us for these outstanding events that are coming up in early June 2014! June 5 — Silicon Valley Symposium on Preservation Excellence Date:       Thursday, June 5, 2014 Agenda:  4:00 p.m. – Symposium: “Data Preservation in the Age of Social Media” 5:30 p.m.  – Complimentary Happy Hour Cost:         […] ... continue reading

May 08, 2014

Texas Judge Orders Adverse Inference Sanction for ‘Staggering’ Loss of Evidence

Quantlab Techs. Ltd. v. Godlevsky, No. No. 4:09-cv-4039, 2014 U.S. Dist. LEXIS 20305 (S.D. Tex. Feb. 19, 2014) The court determined that an adverse inference instruction was the appropriate remedy for the loss of a “staggering amount of evidence potentially relevant to this case,” id. at *82, even though the plaintiffs could not adduce evidence […] ... continue reading

May 08, 2014

Spoliation Four Ways: Washington Court Orders $25,000 and Attorneys’ Fees and Costs

Knickerbocker v. Corinthian Colleges, No. C12-1142JLR (W.D. Wash. Apr. 7, 2014) In this employment law case, the court found “clear and convincing evidence” that the defendant and its counsel “have refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith.” Sanctions were necessary to remedy their […] ... continue reading

April 14, 2014

Last-Minute Revision Brings Forth Streamlined Proposal for Rule 37(e) at Advisory Committee Meeting

On April 10-11 2014,  the Advisory Committee on Civil Rules chaired by U.S. District Judge David Campbell (D. Ariz.) convened at Lewis & Clark College in Portland, Ore., to consider final proposals to amend the Federal Rules of Civil Procedure. While not final, this was the culmination of an effort that kicked off in 2009 and […] ... continue reading

April 02, 2014

Legal Hold Pro Voted ‘Best of The National Law Journal 2014′

Legal Hold Pro is proud to announce that we have been voted the best over our competitors in the 2014 The Best of The National Law Journal Readers Rankings for legal hold solutions. Nearly 6,500 legal professionals cast votes for over 465 of their favorite vendors in 94 categories. The winners were announced on March 31. Click […] ... continue reading

March 12, 2014

Pharmaceutical Company Faces Setback from Sanctions for ‘Bad Faith’ Spoliation in Huge Product Liability Case

A 2,600-member class action lawsuit took a damaging turn on the eve of a critical bellwether trial when a judge ruled that the pharmaceutical company disregarded a litigation hold resulting in the loss of critical communications about the drug in question. The trial stemmed from allegations that using Actos® from Takeda Pharmaceutical could result in […] ... continue reading

March 12, 2014

Judge Refuses to Vacate Spoliation Sanctions in Intellectual Property Dispute – Even After Case Settles

A U.S. Magistrate in the Eastern District of Virginia took the extraordinary step of handwriting the denial of a motion by the parties to have spoliation sanctions vacated in Digital Vending Services International LLC v. The University of Phoenix Inc. et al., No. 2:09-cv-00555, E.D.Va. This could mark a new threshold in the courts of not […] ... continue reading

January 31, 2014

Court Fines Defendants $931,500 in Pradaxa Class Action After Repeated Failures to Implement Legal Holds

The class action product liability case against Boehringer Ingelheim Pharmaceuticals Inc., or BIPI, regarding the blood thinning drug sold as Pradaxa took a stunning turn with December 9, 2013 opinion by Chief Judge David R. Herndon of the Southern District of Illinois. In the blistering opinion the Court cited failure after failure, including misrepresentation of […] ... continue reading

January 31, 2014

Selective Preservation of Text Messages Uncovered with an Undisclosed Subpoena that Is Allowed to Impeach Evidence; Adverse Inference Sanction Results

The January 16, 2014 opinion in Calderon v. Corporacion Puertorique a de Salud from the District of Puerto Rico showed that selective preservation (or selective spoliation, depending on one’s perspective) is unwise, but also an undisclosed subpoena can be used as long it is used solely for impeachment purposes. District Judge Francisco A. Besosa found […] ... continue reading

January 31, 2014

Collections Tracking in Legal Hold Pro Provides Real-time Intelligence Across the Entire Preservation Process

We introduced today the new Collections Tracking module in Legal Hold Pro™, the industry’s fastest growing legal hold management software. With Collections Tracking, in-house legal teams will have a powerful tool for directing and overseeing both the preservation and collection of potentially responsive electronically stored information. Once custodians have been notified of a preservation obligation, […] ... continue reading

December 18, 2013

Top 10 Legal Hold and Data Preservation Opinions of 2013

In our second annual recap, we are looking back at the year that was in, terms of opinions, centered on legal holds and data preservation. Any expectation that the number of cases would subside fell by the wayside early in 2013 with a number of opinions in the first quarter and the pace has not […] ... continue reading

December 11, 2013

Calif. Magistrate Judge Recommends Adverse Inference Sanction for Failure to Issue Legal Hold Despite ‘Saved Everything’ Defense

On November 25, 2013, U.S. Magistrate Judge William V. Gallo of the Southern District of California issued an order in a patent infringement suit in which he granted an adverse inference and monetary sanctions for spoliation sanctions deemed “grossly negligent.” The ruling in Zest IP Holdings, LLC v. Implant Direct Mfg., LLC (S.D. Cal., Civil […] ... continue reading

December 11, 2013

Puerto Rico Magistrate Judge Denies Adverse Inference Motion Absent of Prejudice for Spoliation of Executives’ Personal Email

The plaintiff in a commercial litigation between two telecom providers in Puerto Rico brought a motion for an adverse inference sanction when it learned that relevant personal emails of the defendant’s executives were not preserved. The court denied the motion citing the defendants’ preservation efforts including a timely litigation hold, willingness to recover lost emails, […] ... continue reading

November 26, 2013

Legal Hold Pro Wins ‘Best of Legal Times 2013′

Legal Hold Pro is proud to announce that our software has been voted the best legal hold solution over our competitors in the 2013 The Best of Legal Times annual readers’ poll. The awards for 90 different categories were announced on November 25 and will be distributed in a special print supplement to The National Law […] ... continue reading

November 01, 2013

Plaintiff in Diaper Lawsuit Hit with Adverse Inference to Remedy Spoliation from Failure to Issue Legal Hold

A U.S. Magistrate Judge Robert M. Levy in the Eastern District of New York ordered an adverse inference sanction and payment of attorneys’ fees for the plaintiff in a case due to spoliation of evidence after the court learned that no litigation hold was issued. The court deemed the plaintiff’s actions to constitute gross negligence […] ... continue reading

November 01, 2013

Massive Product Liability Tort Not Derailed by Spoliation Claim Due to Rule 37 ‘Safe Harbor’

In what is being characterized as one of the largest mass civil lawsuits, defendant Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) avoided sanctions due to the destruction of a key custodian’s email because it occurred prior to the trigger and in accordance with the company’s document retention policy. Chief Judge David R. Herndon provided a thorough analysis […] ... continue reading

September 26, 2013

PREX13 Recap – Leading E-Discovery Experts and Federal Judges Focus Recent Case Law, Rules Amendments, International Preservation and BYOD

The second annual Conference on Preservation Excellence (PREX13) was held September 18-19 in Portland, Oregon.  Attended by over 130 participants, the 2013 conference again drew praise by focusing on the importance of sound data preservation and best practices.  The goal for PREX each year is to bring some of the best minds in e-discovery together […] ... continue reading

September 26, 2013

Kansas Federal Court Finds No Prejudice as Grounds for Denying Spoliations Sanctions

A Magistrate Judge in Kansas recommended that since the plaintiff could not show prejudice from the defendants’ spoliation of ESI that the motion for an adverse inference be denied in Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013 WL 4028759 (D. Kan. Aug. 7, 2013). The recommendation, which was adopted in full by the presiding […] ... continue reading

September 06, 2013

Just Published! Legal Hold and Data Preservation Benchmark Survey Finds Majority Are Still in ‘Adolescence’ of Preservation Process Maturity

We just published the landmark Legal Hold and Data Preservation Benchmark Survey 2013. Conducted by the Steinberg Group LLC, the survey measured the prevailing attitudes of 525 professionals who currently oversee legal hold processes, making it the largest study of its kind focused specifically on how organizations are currently handling legal data preservation. Some key findings […] ... continue reading

August 29, 2013

Judge Scheindlin Game Changer – She Emphatically Overturns Magistrate’s Order and Imposes Adverse Inference Sanction in Sekisui

Never far from the spotlight, U.S. District Judge Shira Scheindlin (S.D.N.Y.), author of the landmark Zubulake and Pension Committee opinions, dramatically overturned a U.S. Magistrate’s previous opinion in Sekisui American Corp. v. Hart, No. 12 Civ. 3479 (SAS) (FM), 2013 WL 4116322 (S.D.N.Y. Aug. 15, 2013). In doing so, she has asserted that the plaintiffs […] ... continue reading

August 29, 2013

Northern District of California Opinion Shows Judicial Restraint When Duty to Preserve Is Deemed ‘Not ‘Limitless’

By reading recent case law, it seems that there is no spoliation small enough for which a party will not file a motion for an adverse inference sanction. In AMC Technology, LLC  v. Cisco Systems, Inc., No.: 11-cv-3403 P, 2013 U.S. Dist. LEXIS 101372 (N.D. Cal. July 15, 2013), one such motion was denied when […] ... continue reading

July 28, 2013

Cox Communications Avoids Adverse Inference for Spoliation in Consumer Suit Due to Lack of Proof of Prejudice

In recent weeks there has been a spate of opinions weighing spoliation sanctions (i.e., Sekisui v. Hart, PTSI v. Haley) in which adverse inference instructions are specifically sought. Add Cottle-Banks v. Cox Communications, Inc., No. 10cv2133-GPC(WVG), 2013 U.S. Dist. LEXIS 72070 (S.D. Cal. May 21, 2013) to that list. The result handed down by U.S. […] ... continue reading

July 28, 2013

Slate of Proposed FRCP Amendments Approved for Public Comment on June 3

On June 3, 2013, the Judicial Conference of the United States’ Standing Committee on Rules of Practice and Procedure voted to approve the proposed amendments to the FRCP for public comment, a key step on their path toward adoption. As Law Technology News reported on June 6, 2013 in “Proposed Discovery Amendments Move to Public Comment:” […] ... continue reading

July 28, 2013

Colorado Court Deems Loss of ‘Key Player’s’ Evidence a Sanctionable Offense in Hart v. Dillon

A U.S. Magistrate Judge in Colorado found that the failure to preserve a recording by a key player after the duty to preserve attaches to be grossly negligent or willful behavior. As a result of this ruling, U.S. Magistrate David L. West (D. Col.) granted a motion for sanctions which are yet to be determined […] ... continue reading

July 28, 2013

Without Evidence of Prejudice, S.D.N.Y. Court Denies Sanctions Despite Spoliation of Evidence in Sekisui v. Hart

An opinion by U.S. Magistrate Frank Maas in the U.S. Southern District of New York may be a harbinger of how courts will evaluate spoliation cases in the coming years. In this case, whereas the plaintiff was found to be negligent with respect to actions to preserve relevant data, Judge Maas concluded the defendants failed […] ... continue reading

June 25, 2013

Proposed Rules Changes Seek to Standardize Sanctions for Spoliation

For those watching trends in electronic discovery, the debate about proposed amendments to the Federal Rules of Civil Procedure to address concerns over the rising costs of preservation and risk of spoliation sanctions have been under discussion for more than two years. The United States Courts’ Advisory Committee on Federal Rules has held numerous meetings […] ... continue reading

June 25, 2013

Solid Preservation Policy Turns Back Defendants’ Motion for Sanctions in New York

Not every spoliation motion results in sanctions, as was the case in Research Foundation of State Univ. of New York v. Nektar Therapeutics (N.D.N.Y. May 15, 2013).  In his opinion addressing several motions in the patent licensing dispute, Chief Judge Gary L. Sharpe denied Nektar’s motion seeking an adverse inference instruction and monetary sanctions “on […] ... continue reading

June 24, 2013

E-Discovery Experts Gather Last Week in Houston to Drill Into Preservation Challenges

This past week, we held another highly successful Mini-Conference on Preservation Excellence on June 19 in Houston, Texas (PREX-TX).  The half-day session focused on industry trends and best practices when it comes to data preservation and legal holds, and was led by two outstanding CLE program moderators, the Hon. Ron Hedges (former U.S. Magistrate Judge […] ... continue reading

June 24, 2013

Illinois District Court Hands Down Adverse Inference Sanction for Failure to Suspend Automatic Deletion of Data in ‘Bad Faith’

By Brad Harris On May 22, 2013, U.S. District Judge Joan H. Lekfow issued an opinion in Pillay v. Millard Refrigerated Services Inc. citing preservation failures done in bad faith as the court’s reasoning for granting a motion for an adverse inference instruction. The outcome reflects a number of recent cases nationwide including Kirgan v. […] ... continue reading

May 22, 2013

Kirgan v. FCA LLC – Rule 1: Preserve ESI When Litigation is Forthcoming. Rule 2: Don’t Mislead When Breaking Rule 1, or Sanctions Will Follow

In one of the more flagrant violations of the obligation to preserve, an employment case from Illinois is a clear illustration what is not a “culture of compliance.” In Kirgan v. FCA LLC, Case No. 10-1392, 2013 U.S. Dist. LEXIS 51747 (C.D. Ill. Apr. 10, 2013), the plaintiff had filed an EEOC claim contesting his […] ... continue reading

May 22, 2013

Google Not Given Safe Harbor Under Rule 37(e) for Failure to Preserve Past Versions

On April 2, 2013, U.S. Magistrate Paul Grewal in the Northern District of California issued an opinion in Dunbar v Google (2013 US Dist LEXIS 48630, N.D.Cal, April 2, 2013) that has the potential for far-reaching interpretation regarding the extent to which document revisions are subject to preservation. The nature of the case is the […] ... continue reading

May 22, 2013

PREX NY: Leading Experts Provide Updates on Latest Developments in Case Law and Preservation Best Practices

Following last September’s successful Conference on Preservation Excellence, or PREX for short,  Legal Hold Pro took the show on the road to New York on April 29, 2013. The half-day “mini-conference” was a highly successful due to a group of phenomenal speakers led by Paul Weiner (Littler Mendelson) and Robert Owen (Sutherland Asbill & Brennan […] ... continue reading

April 26, 2013

Arizona District Court Imposes Harsh Sanctions for Spoliation with a ‘Culpable Mind’ in Day v. LSI

What started out as a seemingly run-of-the-mill employment case quickly fell down the spoliation rabbit hole resulting in severe sanctions including partial default judgment, an adverse inference instruction and a $10,000 monetary award. The 29-page opinion by U.S. District Judge Cindy K. Jorgenson goes into great detail about the facts of the defendants’ preservation efforts […] ... continue reading

April 26, 2013

Adverse Inference Sanction Issued in N.J. Case Involving Spoliation of Facebook Data Is a Lesson on Social Media Disposition

An opinion from March in a personal injury case involving the deletion of a Facebook account is a good lesson for e-discovery professionals about the vulnerability of social media to irretrievable loss. U.S. Magistrate Steven Mannion ordered an adverse inference instruction to the jury after the plaintiff in Gatto v. United Air Lines was determined […] ... continue reading

March 20, 2013

Federal Circuit Overturns Adverse Inference Sanction for Spoliation in Adams. v. Dell

[Correction — This article has been corrected to show that the ruling was from the Federal Circuit, not the Tenth Circuit as originally reported. - Ed.] The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp. has been an ongoing saga with actions dating back to the 1990s. In recent […] ... continue reading

March 19, 2013

Two EEOC Discrimination Cases Lead to Serious Sanctions for ‘Inexcusable’ and ‘Careless’ Failures to Issue Litigation Holds Resulting in Spoliation

If you believe in coincidences, there was a significant one that occurred in February. Two Federal discrimination cases, EEOC v. JP Morgan Chase in the Southern District of Ohio (Sixth Circuit) and EEOC v. Ventura Corp. from the District of Puerto Rico (First Circuit), had rulings against defendants which were sanctioned for failing to preserve […] ... continue reading

March 19, 2013

Colorado Court Finds Negligence In the Case of the Missing Text Messages

Club owners and DJs going into business together may sound like a bad idea, and that notion was borne out in a recent Colorado case that involved an iPhone with text messages that had gone missing. District Judge R. Brooke Jackson issued a wide-ranging opinion in late January responding to seven motions; for the sake […] ... continue reading

February 18, 2013

Corporate Counsel Agenda Survey Shows Creating Culture of Compliance Is Among Top Concerns

A new national survey of corporate counsel released February 15 revealed that creating a culture of compliance is a top priority in 2013. The “Corporate Counsel Agenda 2013” survey published by ALM Legal Intelligence queried 126 GCs, Chief Legal Officers and deputy general counsels at companies with revenue ranging from more than $1 billion (43%), […] ... continue reading

February 18, 2013

New York and Delaware State Courts Address Preservation in New E-Discovery Rules

In the month of January, two influential state court systems introduced measures to improve the handling of electronic discovery that directly address the needs of litigants to improve data preservation. Both New York and Delaware are moving toward the standards outlined in the Federal Rules of Civil Procedure. The Delaware Court of Chancery adopted on […] ... continue reading

January 17, 2013

Gibson Dunn’s 2012 E-Discovery Report Includes Recap on Preservation Cases, Reform Efforts and Sanctions

Every January for the past few years, Gibson Dunn publishes an extensive summary of the key decisions in the area of electronic discovery. The 2012 edition was published on January 14 and for those interested in staying on top of the latest developments it is worthwhile reading. Following are a few highlights: Preservation (pp.25-27) As […] ... continue reading

January 16, 2013

Scope of Litigation Hold Extends to Independent Agents in New Jersey Ruling Resulting in Court Ordered Litigation Hold

An opinion out of the U.S. District of New Jersey weighed in on a gray area of data preservation when it ruled that “independent agents” were subject to the parent company’s preservation obligation and therefore required to receive a litigation hold. The case delved into issues pertaining to First American Insurance’s “possession, custody and control” […] ... continue reading

December 12, 2012

Just Published: ‘Legal Hold and Data Preservation Best Practices’ Provides Practical Tips from Experts on Preservation

Legal Hold and Data Preservation Best Practices is the most current and complete guide about preservation today. Developed in concert with some of the most respected names in electronic discovery and in-house practitioners, the Guide reflects a level of dialogue and depth of discussion on litigation holds and data preservation that is unprecedented. DOWNLOAD YOUR COMPLIMENTARY COPY […] ... continue reading

December 12, 2012

Top 10 Preservation Opinions of 2012

The pace of sanction cases continued unabated during 2012. The interesting development is that during 2012 the opinions were issued much more broadly than in past years, with key cases from the Western states as well as state courts. An interesting new twist is that several courts issued sanctions for preservation failures even when ESI […] ... continue reading

December 11, 2012

New Proposed Rule Changes Focus on Appropriate Sanctions for Spoliation

By Brad Harris On November 2, 2012, the Discovery Subcommittee reached consensus to forward a rule proposal to the Standing Committee, with a recommendation that it be published for public comment in August 2013.  This effort stems from work first started by the E-Discovery Panel at the Duke Conference in May 2010, and included a […] ... continue reading

October 25, 2012

‘Lackadaisical’ Litigation Holds by Federal Government Undermines Medicaid Fraud Case

By Brad Harris In a ruling that will have defense lawyers licking their chops, U.S. District Judge William P. Johnson on October 3 upheld U.S. Magistrate Alan C. Torgerson’s opinion when the Court unequivocally overruled objections regarding spoliation sanctions due to an inadequate litigation hold process. Department of Justice lawyers were attempting to overturn Judge […] ... continue reading

October 24, 2012

Scentsy v. B.R. Chase: Whiffs of Spoliation from Plaintiff in Idaho Case Causes Court to Take Action

By Brad Harris Earlier this month, Chief Judge B. Lynn Winmill (D.Idaho) issued a court order against Scentsy Inc., the plaintiff in a copyright infringement case between two scented candle makers, for failing to issue a litigation hold and inadequate retention policies. While the court determined that spoliation was unlikely, it took the matter seriously […] ... continue reading

October 01, 2012

Hynix v. Rambus: Rambus’s $397M Judgment to Be Lowered Due to Revised Consideration of Trigger Event

In what feels like the never-ending story, a new chapter on the long-running patent infringement case between Hynix and Rambus opened with a ruling by U.S. District Judge Ronald M. Whyte (N.D. Cal.) on September 21, 2012. The court’s latest opinion, following nearly 7 years after the original trial, is likely to reduce dramatically the […] ... continue reading

October 01, 2012

PREX12 Recap – The Four Overarching Themes That Emerged at the Conference on Preservation Excellence

The 2012 Conference on Preservation Excellence (PREX12) was held September 27-28 in Portland, Ore., and proved to be an event that raised the bar on data preservation. With more than 100 attendees, the level of dialogue and depth of discussion on litigation holds and data preservation was unprecedented. The goal of the conference and all […] ... continue reading

August 15, 2012

Conference on Preservation Excellence Adds Distinguished Judicial Panel

The 2012 Conference on Preservation Excellence announced today the addition of a judicial panel for a session called “The View from the Bench on Preservation.”  The session will feature the following judges: Hon. Paul S. Grewal, U.S. Magistrate Judge, U.S. District for the Northern District of California and who recently wrote Apple, Inc. v. Samsung […] ... continue reading

August 03, 2012

Apple v. Samsung: Lack of Custodian Follow-Up and Failure to Suspend Auto-Deletion of Email Equals Adverse Inference

The stakes could hardly be higher than the multi-billion dollar design patent trial between high tech titans Apple and Samsung – both are among the top 30 largest global companies. Apple’s iPhone invented the smart phone category and this suit alleges that Samsung copied the iPhone’s design in violation of its patents. With hundreds of […] ... continue reading

July 26, 2012

Conference on Preservation Excellence to Debut September 27-28, 2012 in Portland, Ore.

National e-discovery leaders and in-house practitioners gather for first conference to focus on legal preservation that will provide practical advice for reducing the burden of preservation The 2012 Conference on Preservation Excellence, the first conference focused exclusively on improving the legal preservation process, will be held September 27-28, 2012, in Portland, Oregon. The Conference’s goal […] ... continue reading

July 17, 2012

Chin v. Port Authority: Second Circuit Seemingly Rejects Pension Committee’s Standard for Gross Negligence. But Really It Doesn’t.

By Brad Harris The latest noteworthy decision regarding spoliation sanctions stemming from preservation failures emerged out of the Second Circuit Court of Appeals on July 10, 2012. In Chin v. Port Authority of New York New Jersey, a counter-claim by plaintiff Howard Chin sought a spoliation sanction of an adverse inference instruction due to the […] ... continue reading

July 11, 2012

eDiscovery Journal Looks at the Latest Trends in Legal Hold Management

E-Discovery Journal’s Mikki Tomlinson wrote about her recent experiences in overseeing a RFI process for a major corporate client. Her candor in “What’s Trending in Legal Hold Management?” from July 10 provides some timely insights into the current trends in legal hold technology based on the combination of an in-depth reviews of more than a […] ... continue reading

July 11, 2012

Motion for Spoliation Sanctions Falters When Plaintiff’s Wishful Thinking Doesn’t Become Reality

Our friend Josh Gilliland at Bow Tie Law recently recounted a ruling that offered a new twist on the motion for spoliation sanctions. In Omogbehin v. Cino, 2012 U.S. App. LEXIS 12545, (3d Cir. N.J. June 20, 2012) out of U.S. Court of Appeals, Third Circuit, the Plaintiff appealed a District Court’s denial of a […] ... continue reading

July 10, 2012

New Edition of Federal Judiciary Center Pocket Guide on E-Discovery Reflects Growing Focus on Preservation

The Federal Judiciary Center recently published the second edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges. This 48-page guide follows the first edition from 2007 and is a good measure of how preservation has evolved during the intervening five years. The fact that the Pocket Guide doubled in length owes to […] ... continue reading

July 10, 2012

Despite No Evidence of Spoliation, Court Orders Up to $70K in Sanctions for Preservation Failures Anyway

By Brad Harris A District Judge in New Jersey upheld the opinion of a Magistrate’s finding of sanctions on appeal in a liability case out of U.S. District of New Jersey – despite the fact that no evidence of spoliation was concretely found. We first learned about this from Scott Etish’s post at E-Discovery Law […] ... continue reading

May 30, 2012

E-Discovery Leaders Describe Challenges of Getting Preservation and Legal Holds Right

An all-star panel from the e-discovery world gathered at the New York City Bar Association on May 17, 2012, to discuss the challenges faced in different roles when it comes to issuing legal holds and managing preservation. The event, “Four Perspectives on Preservation and Proportionality,” was organized by Legal Hold Pro and featured U.S. Magistrate […] ... continue reading

May 29, 2012

Alabama Opinion Denies Motion for Spoliation Sanctions Due to Defendant’s ‘Good Faith’ Legal Hold Efforts

A recent opinion from the Middle District of Alabama (M.D. Ala.) demonstrates the importance of having a sound litigation hold process in place to avoid sanctions for failure to preserve electronic information. We first read about this case in A Spoliation Ace in the Hole which appears in Cozen O’Connor’s E-Discovery Law Review. In Danny […] ... continue reading

May 28, 2012

New York State Supreme Court Dismisses Case Due to Spoliation from Ineffective Litigation Hold Process

In a legal malpractice case dating back to 2008, a Plaintiff had a $20 million claim dismissed outright due to ESI lost resulting from a legal hold that was completely ineffective. In 915 Broadway Associates, LLC, v. Paul, Hastings, Janofsky & Walker, LLP, 2012 NY Slip. Op. 50285U (N.Y. Sup. February 16, 2012), which we […] ... continue reading

May 16, 2012

Zapproved Partners with Nuix to Launch Legal Hold Solution

Nuix, a worldwide provider of information management technologies, and Zapproved Inc., developers of Legal Hold Pro™, announced a technology partnership to introduce Nuix Legal Hold.  Nuix Legal Hold is a cloud-based legal hold notification and compliance tracking system that works with Nuix collection and eDiscovery solutions.  Nuix Legal Hold is built on Legal Hold Pro, […] ... continue reading

April 24, 2012

Pouncil v. Branch Law Firm – A Reminder that Law Firms Need to Get With the Times on Issuing Legal Holds

LeClairRyan’s Dennis Kiker posted on April 23 about a new opinion from U.S. Magistrate Judge David Waxse that illustrates the importance for law firms to have their preservation efforts in order (just like their clients). In Pouncil v. Branch Law Firm (Case No. 10-1314-JTM-DJW, D. Kan. Mar. 7, 2012), the law firm was involved in […] ... continue reading

April 24, 2012

Thin Guidance from JETWG on Preservation of Digital Evidence in Criminal Cases

To date almost every discussion surrounding preservation of electronic evidence has focused on civil cases, despite the routine use of digital evidence in criminal matters. The influential U.S. District Judge Shira A. Scheindlin and Jeffrey Rabkin published Criminal Law Catches Up: New ESI Guidelines Issued in the New York Law Journal which recaps the Recommendations for […] ... continue reading

April 17, 2012

Research Alert: Our Four Big Takeaways from RAND Study That Zeroes In On Preservation as a Major Pain Point

By Brad Harris The RAND Institute for Civil Justice (ICJ) published an interesting study last week focusing on the costs of electronic discovery in civil litigation. The 131-page report Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery offers some great insights into the costs of discovery, and perhaps more importantly, the current […] ... continue reading

March 29, 2012

Event Alert: Legal Hold Pro Presents ‘Four Perspectives on Preservation and Proportionality’ in New York on May 17 with Distinguished Panel

Four Perspectives on Preservation and Proportionality: The Judge, The GC, Plaintiffs’ Counsel and Defense Counsel Date:   Thursday, May 17 Time:  8:30 to 10:00 a.m. Location:  New York City Bar Association Building, 42 W. 44th St., New York, NY Cost:  Complimentary, but space is limited. Reservation required. CLE Credit:  Pending for NY PROGRAM OVERVIEW  Legal Hold Pro is […] ... continue reading

March 12, 2012

Three Lessons from Perez v. Vezer Industrial: 1) Legal Holds Are Necessary Regardless of Org. Size; 2) Don’t Inflate Your Costs; and 3) Don’t Let Satan Drive

In late 2011, an opinion out of the Eastern District of California reaffirms that even if a company is small, size cannot be an excuse for failing to issue a litigation hold to preserve electronic data.  The opinion by U.S. Magistrate Carolyn K. Delaney in Perez v. Vezer Industrial Professionals, Inc. 2011 WL 5975854 (E.D. […] ... continue reading

February 21, 2012

New York Appeals Court Upholds Zubulake Legal Hold Standard in Voom v. EchoStar Resulting in Adverse Inference Instruction

Voom HD Holdings LLC v. EchoStar Satellite LLC, 2012 NY Slip Op 00658 (January 31, 2012) A unanimous opinion out of a New York state appellate court in the Voom v. EchoStar is the first case at this level to explicitly uphold the standards set forth by U.S. District Judge Shira Scheindlin in Zubulake and […] ... continue reading

February 15, 2012

New Study Points to Need for Change in How Government Agencies Manage E-Discovery

IE Discovery just published its 2011 Benchmarking Study of Electronic Discovery Practices for Government Agencies and it seems like “times they are a-changin,’” to quote the inimitable Bob Dylan. In-house legal teams at the Federal level are starting to feel the same pain as their counterparts about the rigors of preservation and electronic discovery. This […] ... continue reading

February 08, 2012

LegalTech 2012: Don’t Take Your Eyes Off of the Preservation Ball (Or Four Reasons Why Predictive Coding Isn’t for Everyone)

Last week we celebrated the annual rite of passage that is LegalTech New York. By all accounts it was a successful year with record attendance, bustling Exhibit Halls and non-stop presentations. Leading up to the conference, Law Technology News wrote about the expected buzzwords which pointed to “predictive coding” (a.k.a. “technology assisted review”), “social discovery,” […] ... continue reading

February 08, 2012

Legal Hold Pro Adds Collection Tracking Capability to Enhance Your Preservation Workflow

We have exciting news! Legal Hold Pro can now initiate and track collection tasks associated with a legal hold. After notifying custodians of a duty to preserve, a legal team often needs to take additional steps such as suspending auto-deletion in an email archive or triggering a data collection. With this new capability, Legal Hold […] ... continue reading

February 08, 2012

Legal Hold Pro Introduces Law Firm Advantage Edition that Provides New Way to Collaborate with Clients on Preservation Efforts

Last week at LegalTech NY, we introduced a set of new features so law firms can work with clients to deploy the fastest growing legal hold notification and compliance tracking system. Since Legal Hold Pro is web-based, law firms can immediately utilize the tool with clients without the need to install, configure or maintain software. […] ... continue reading

February 08, 2012

Zapproved Appoints Hon. Robert J. Cindrich (Ret.) to Board of Directors

We are proud to announce that  our Board of Directors has voted to appoint Hon. Robert J. Cindrich (Ret.) to the Board. Cindrich served as a Federal judge in the U.S. District Court for Western Pennsylvania for 10 years and currently serves as Senior Advisor to the Office of the President at the University of […] ... continue reading

January 26, 2012

Come See What’s New with Legal Hold Pro at LegalTech from Jan. 30 to Feb. 1

LegalTech is right around the corner with the show kicking off on Monday, January 30, and continuing through Wednesday, February 1, at the Hilton New York. Legal Hold Pro will be  exhibiting and rolling out some exciting new enhancements to our industry leading legal hold management system. If you are planning to attend, come see […] ... continue reading

December 16, 2011

Georgetown 2011 Recap: Three Takeaways on Preservation

We were honored once again to sponsor the Georgetown Law Center 8th Annual Advanced eDiscovery Institute which took place November 17-18 in Pentagon City, VA. This conference is an annual highlight because of the outstanding quality of the panels, which include many of the country’s most influential jurists.  We were also pleased to have contributed […] ... continue reading

December 16, 2011

Subsequent Briefs in Pippins v. KPMG Provide Further Insights into Dispute Over Hard Drive Preservation

By Brad Harris In our recently published white paper, Preservation and Proportionality, Ron Hedges and I solicited input from industry thought leaders on the current debate over the rising costs of data preservation and the call for proportionality through cooperation, court order or rule changes.  A particularly relevant opinion was issued from the Southern District […] ... continue reading

December 12, 2011

NACCO v. Lilly: Spoliation Sanctions in Tennessee Case Shows Ongoing Challenge of Preservation

By Brad Harris We just learned of another preservation case involving sanctions but what makes this one stand out is that the litigation started in 2011 – after Pension Committee, Rimkus, Victor Stanley II, and the other opinions showing the courts’ focus on preservation issues. This case out of the Western District of Tennessee, which […] ... continue reading

November 16, 2011

Just Published! ‘Preservation and Proportionality’ Solicits Opinions on How to Handle Preservation in the Post-Pension Committee World

Today we are announcing the publication of “Preservation and Proportionality: Perspectives on Lowering the Burden of Preserving Data in Civil Litigation,” a 36-page white paper that offers a comprehensive resource in the ongoing discussion around best practices for data preservation. “Preservation and Proportionality” is edited by our Brad Harris and Ron Hedges, a former United […] ... continue reading

October 17, 2011

New S.D.N.Y. Ruling in Pippins v. KPMG Focuses on Proportionality in Preservation

By Brad Harris Pippins v KPMG, 2011 WL 4701849 (S.D.N.Y.) October 7, 2011 U.S. Magistrate Judge James L. Cott from the influential Southern District of New York (S.D.N.Y.) released an interesting opinion in early October that reflects on an emerging question: Should the principles of proportionality as articulated in FRCP Rule 26(b)(2)(c) apply to a […] ... continue reading

October 07, 2011

New Jersey Company Found Grossly Negligent for Inadequate Legal Hold

N.V.E., Inc. v. Jesus J. Palmeroni, et al., Civil Action No. 06-5455 (ES), 2011 U.S. Dist. LEXIS 107600 (D.N.J., September 21, 2011) On September 21, 2011, a new ruling out of New Jersey highlighted the intolerance of the courts for improperly implemented litigation holds.  In N.V.E. v. Palmeroni,  U.S. District Judge Esther Salas imposed monetary […] ... continue reading

October 06, 2011

Four Takeaways from the Dallas Mini-Conference on Preservation and Sanctions

By Brad Harris Last month, the Advisory Committee on Civil Rules called together a mini-conference to solicit greater insight in the nature and scope of the preservation problem, including how technology is contributing to the issue and how rule changes might help address the problem. Held under the auspices of the Discovery Subcommittee, the Mini-Conference […] ... continue reading

August 24, 2011

Webinar: “Partners in Preservation: How Law Firms Can Help Clients Avoid E-discovery Sanctions” on Sept. 20

REGISTER NOW! Over the last 18 months, data preservation for discovery has been in the spotlight like never before. One important aspect is the emphasis that several courts have are put on the obligation of outside counsel to oversee the preservation process. Many counsel are now taking a much more active role to help ensure […] ... continue reading

August 24, 2011

Webinar: “Data Preservation and Legal Holds: Best Practices and New Technology” on Sept. 13

REGISTER NOW! It has been nearly eight years since Judge Shira Scheindlin issued the Zubulake opinions that set the course for modern eDiscovery. Last year, she issued her notable Pension Committee ruling that reinforced considerations for reasonable and good faith expectations when responding to a duty to preserve, which set off a chain reaction of other […] ... continue reading

August 19, 2011

Legal Holds Feature in Gibson Dunn’s 2011 Mid-Year E-Discovery Report

Since the law firm Gibson Dunn started covering electronic discovery rulings in its twice-per-year reports, they have become a “go to” resource for practitioners.  The team at Gibson Dunn recaps notable cases and organizes the report so that key trends are highlighted and they recently released the 2011 Mid-Year E-Discovery Report. In the first half […] ... continue reading

August 16, 2011

The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation after Issuing Weak Legal Hold

by Brad Harris In July, we posted about the DuPont v. Kolon opinion in April which was noteworthy in that DuPont escaped any sanctions in spite of spoliation by having a strong preservation plan in place.  The Eastern District of Virginia’s Senior District Judge Robert E. Payne issued a subsequent ruling on July 21 responding […] ... continue reading

July 28, 2011

Webinar: “Data Preservation 2011 – Looking at How Your Company Can Be State-of-the-Art” on August 3rd

Register Here:   https://www2.gotomeeting.com/register/368826627 TERIS and Legal Hold Pro present a one-hour seminar on optimizing legal preservation in 2011 when the courts’ expectations have never been higher and e-discovery practices are being scrutinized by opposing counsel.  New opinions such as Haraburda v. Arcelor Mittal, Dupont v. Kolon and Green v. Blitz USA are continuing to put the spotlight on what companies should and shouldn’t […] ... continue reading

July 18, 2011

Haraburda v. Arcelor Mittal: Court Orders Litigation Hold After Defendant Attempts to Delay Until after ‘Meet and Confer’

Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) An opinion in late June from the Northern District of Indiana firmly reiterated the need for a legal hold and shot down one litigant’s attempts to postpone its timing until after the Rule 26(f) meeting.  That strategy […] ... continue reading

July 12, 2011

DuPont v. Kolon: DuPont Avoids Sanctions by Maintaining Legal Hold Practices

8/16 UPDATE: See subsequent blog post: The Other Shoe Drops in DuPont v. Kolon: Sanctions for Defendant for Spoliation After Issuing Weak Legal Hold (8/16/2011) E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, 2011 U.S. Dist. LEXIS 45888 (E.D. Va. Apr. 27, 2011) In an opinion from late April, Sr. […] ... continue reading

June 19, 2011

Webinar: “A Compelling Need for Change in Legal Hold Practices” with Charlotte Riser Harris and Brad Harris

Charlotte Riser Harris, Litigation Support Manager for Hess Corporation, and Brad Harris, leading national  preservation expert and VP for Legal Products at Zapproved (no relation to Charlotte), team up for a one-hour webinar designed to help in-house legal teams adapt to the latest preservation standards. The content is adapted from their co-authored article that appeared in […] ... continue reading

June 07, 2011

Some Say Courts Don’t Agree with Pension Committee – But Is That Really the Case?

By Brad Harris The preservation landscape appears to be settling down considerably compared to the turbulent year that was 2010. (If you need a refresher, see Pension Committee Revisited white paper and webinar for a complete recap.) A few opinions have come up in recent months that provide additional insight into how the courts are […] ... continue reading

April 14, 2011

National Law Journal: “Until Next Rules Change, 2010 Cases Set the Standard” by Brad Harris and Ron Hedges

On the heels of their successful Pension Committee Revisited project, our own Brad Harris and Ron Hedges collaborated once again on a contributed article that appears in the April 11 edition of the National Law Journal.  The article, “Until Next Rules Change, 2010 Cases Set the Standard,” examines the state of preservation today based on recent […] ... continue reading

April 04, 2011

Two Cases Feature Extreme Sanctions for Preservation Failures; Both Cite a Failure to Issue a Legal Hold as Key Factor

By Brad Harris Since Judge Francis’s Orbit One in October 2010, we haven’t read a lot about preservation issues. But that ended suddenly with two opinions that had come to light in recent weeks. If the building case law has not been convincing enough, then take note of these sanctions that turn up the heat […] ... continue reading

March 27, 2011

‘Legal Holds and Healthcare’ Webinar on March 30 with National Experts Brad Harris and Ken Rashbaum

Leading national experts Brad Harris and Ken Rashbaum present a one-hour program that will help any legal practitioner working in the healthcare industry. The presentation will review recent case law and its impact on preservation, look at trends in the healthcare sector and what they mean. Harris and Rashbaum then will provide recommendations for ‘best practices’ so that you will be ready when the […] ... continue reading

March 08, 2011

“Pension Committee Revisited: Where Do We Go From Here?” Webinar Features 10 E-Discovery Leaders on March 22

  “Pension Committee Revisited: Where Do We Go From Here?” is a complimentary two-hour program hosted by Brad Harris, VP for Legal Products at Zapproved, and former U.S. Magistrate Judge Ron Hedges. The program brings together a group of the best minds in electronic discovery to discuss the impact of Pension Committee one year later. The panel […] ... continue reading

February 18, 2011

Legal Hold Pro Meets the Press – February 2011 Edition

Since we have been enjoying a little attention from the press recently, we are posting a few items that have appeared during the last two weeks.  We hope you find them interesting! Pension Committee: Looking Back at a Look Back, LTN, February 15, 2011 – ALM’s editorial director for technology David Snow provides his thoughts […] ... continue reading

January 18, 2011

Just Published! “Pension Committee Revisited” edited by Brad Harris and Ron Hedges

We are proud to announce the publication of Pension Committee Revisited: One Year Later, a 42-page white paper published to mark the one-year anniversary since Judge Shira A. Scheindlin issued her landmark opinion. Pension Committee has focused the legal community on issues surrounding the preservation of electronic data involved with litigation. “Pension Committee Revisited” is edited by […] ... continue reading

December 06, 2010

Orbit One v. Numerex: Magistrate Judge Francis Offers His View on Legal Holds

By Brad Harris Orbit One Communications, Inc. v. Numerex Corp., 2010 WL 4615547 (S.D.N.Y., Oct. 26, 2010) In late October, Magistrate Judge James Francis issued an opinion that has continued the judicial debate about legal holds and other preservation practices kicked off in January 2010 with Pension Committee. Judge Francis in Orbit One openly disagrees […] ... continue reading

November 19, 2010

Rush Transcript: Judge Scheindlin Defends Pension Committee by Saying “Just Do It!” to Legal Holds

The Georgetown Law Center’s Advanced E-Discovery Institute is a highlight on the calendar every year.  The conference kicked off yesterday (Nov. 18) at the Ritz-Carlton in Pentagon City, VA, with an e-discovery case law update that involved a panel of many preeminent jurists.  The panel was moderated by The Sedona Conference’s Ken Withers and included […] ... continue reading

October 18, 2010

New “General Counsel Survey” Shows Growing Legal Hold Gap

The University of Denver’s Institute for the Advancement of the American Legal System (IAALS) recently published the results of an extensive survey it conducted with GCs around the country.  The sample size is impressive which gives weight to the survey with 485 valid responses by ACC members with titles of General Counsel or Chief Legal […] ... continue reading

September 30, 2010

Harris and Ball Present “The Enlightened Legal Hold” Webinar on October 12

This complimentary one-hour program is presented by leading e-discovery experts Brad Harris and Craig Ball. They will offer a fresh approach to legal holds following the Pension Committee opinion which they first outlined in the white paper that they co-authored which you can download at www.legalholdpro.com/enlightened. Harris and Ball will examine the “Five Deadly Sins of Legal Holds” that […] ... continue reading

September 16, 2010

The Sedona Conference Publishes Updated Legal Hold Commentary

by Brad Harris This week The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) issued an updated Commentary on Legal Holds, reflecting evolving case law and best practices since 2007.  The document remains an exemplary resource for practitioners charged with determining when a legal obligation to preserve data arises (the “trigger”) and […] ... continue reading

September 13, 2010

Victor Stanley II: Judge Grimm’s Review of the State of Preservation

by Brad Harris On Thursday, September 9, 2010, Judge Paul Grimm of the U.S. Fourth Circuit (D.MD) continuedthe 2010 tradition of huge opinions with his 89-pager about the ongoing spoliation saga in Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010). Craig Ball was the first to get the word out […] ... continue reading

August 24, 2010

“The Enlightened Legal Hold” by Brad Harris and Craig Ball Is Published Today!

We are proud to announce that “The Enlightened Legal Hold: A New Approach to Legal Preservation Following the Pension Committee Opinion” co-authored by Brad Harris and Craig Ball was published today. The latest white paper in the Legal Hold Pro™ Signature Series examines issues that have caused problems for litigants and offers a new way […] ... continue reading

August 20, 2010

Trendspotting in Legal Holds, Part 2 – The 2010 Socha-Gelbmann Electronic Discovery Survey

This is the second part of our look at two major reports on the electronic discovery sector that were released within the last month. You can read Part 1 about the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update that was posted Tuesday. Today we analyze The 2010 Socha-Gelbmann Electronic Discovery Survey […] ... continue reading

August 17, 2010

Trendspotting in Legal Holds, Part 1 – Gibson Dunn Mid-Year E-Discovery Update

Two major reports on the electronic discovery sector were released within the last month.  The first is the Gibson Dunn & Crutcher 2010 Mid-Year Electronic Discovery and Information Law Update in mid-July followed by The 2010 Socha-Gelbmann Electronic Discovery Survey at the beginning of August. It is interesting to see in both reports – of case […] ... continue reading

August 13, 2010

‘Small Corporation’ Gets $10,000 Sanction for Spoliation Resulting from Lack of Written Hold

By Brad Harris Passlogix, Inc.v.2FA Technology LLC, et al., 2010 WL 1702216 (S.D.N.Y., April 27, 2010) An interesting case appeared from New York’s Southern District that saw some egregious behavior by the defendant to purposefully undermine the discovery process. In fact, the court characterized the defendant’s outrageous tactics were undertaken “in an effort to expand discovery, […] ... continue reading

July 02, 2010

Coming Soon to Silicon Valley! “Hold Fast” CLE on July 15th

You are invited to join D4 and Legal Hold Pro for a complimentary lunch program and earn 1.0 MCLE credit approved by the California State Bar Association. Thursday, July 15, 2010 Four Seasons Hotel Silicon Valley 2050 University Avenue East Palo Alto, CA Registration at 11:30 a.m. with lunch being served at 12:00 p.m. Space […] ... continue reading

June 10, 2010

Northern District of Illinois Makes Its Own Way with Opinion Echoing Need for Strong Legal Holds

Jones v. Bremen High School Dist. 228, 2010 WL 2106640 (N.D. Ill. May 25, 2010) By Brad Harris On May 25, 2010, a new opinion was issued out of the Northern District ofIllinois that is noteworthy in what it does not include: It does not cite Zubulake or Pension Committee. Not even once. Yet, the […] ... continue reading

June 03, 2010

Judge Scheindlin Gives Pension Committee a Minor Tune-Up

By Brad Harris For those of you that follow this blog, we’ve been closely monitoring the developments this year out of Judge Shira Scheindlin’s courtroom in the Southern District of New York. The landmark Pension Committee opinion that she published in mid-January of this year was a watershed opinion about legal holds. She denoted a […] ... continue reading

May 26, 2010

“D&O Litigation Landmine: Legal Holds” Webinar on June 3

Spoliation is a scary word; the consequences for directors and officers are even scarier.  No longer will judges give companies a “free pass” for failing to properly implement a litigation hold in the face of reasonably anticipated litigation or government investigation.  A slew of recent cases shows just how devastating an improperly designed or executed litigation […] ... continue reading

May 07, 2010

The Drumbeat Continues: Judge Turns Up the Heat with $25,000 Sanction

By Brad Harris Merck Eprova AG v. Gnosis S.p.A. et al., 07 Civ. 5898 (S.D.N.Y. Apr. 20, 2010) On April 20, 2010, U.S. District Judge Richard Sullivan hammered home the need for proper legal holds in a big way.  In a case that not only echoes Judge Scheindlin’s Pension Committee opinion, but takes it a […] ... continue reading

April 27, 2010

Second Verse Same as the First: Failure to Issue a Legal Hold is Gross Negligence

By Brad Harris Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010) Our friend Josh Gilliland of the Bow Tie Law blog posted last week about an important case out of the Western District of New York involving litigation holds.  (I highly recommend that you check out Josh’s entertaining […] ... continue reading

April 13, 2010

TechnoLawyer Review: Legal Hold Pro Earns 4.8 Rating (Out of 5)

Our first official product review was published today and we couldn’t be more pleased!  TechnoLawyer, a popular legal technology and practice management resource that consists of a network of free, critically-acclaimed e-mail newsletters, published an in-depth review of Legal Hold Pro written by Bruce Olson, President of ONLAW Trial Technologies. The article provides a detailed […] ... continue reading

February 25, 2010

Rimkus v. Cammarata: Another Great Reason Organizations Need an Effective Legal Hold Process

By Brad Harris Coming on the heels of Judge Shira Scheindlin’s Pension Committee v. Banc of America Securities opinion in January, a opinion was issued that centers around appropriate actions to preserve potentially relevant evidence.  The case is Rimkus Consulting Group Inc. v. Nickie G. Cammarata, et al., 07-cv-00405 (SDTX Feb. 19, 2010) out of […] ... continue reading

February 24, 2010

“Arkfeld on Legal Holds” Webinar on Feb. 26th

D4, LLC and Legal Hold Pro present a one-hour program featuring Michael Arkfeld, Esq., author of Arkfeld on Electronic Discovery and Evidence and Arkfeld’s Best Practices Guide for Litigation Readiness and Hold, for a discussion of the impact of U.S. District Judge Shira Scheindlin’s recent Pension Committee v. Banc of America Securities opinion. The webinar […] ... continue reading

February 19, 2010

2010 – The Year of the Legal Hold

We were excited about attending LegalTech earlier this month, but nothing could have prepared us for the response we received. Legal Hold Pro built a buzz as evidenced by comments from industry analyst Brian Babineau of ESG said “the best vendor/solution I saw at LegalTech was Legal Hold Pro… It’s a no-brainer for companies!!” In […] ... continue reading

February 11, 2010

Corporate Counsel: “How Companies Have to Handle Legal Holds”

Brad Harris, our Director of Legal Products, and John Jablonski, Partner at Goldberg Segalla and legal hold expert, today published a by-lined article on Corporate Counsel magazine’s web site.  The article offers advice to in-house legal teams about the implications of Judge Scheindlin’s recent Pension Committee opinion. Brad and John offer timely information that analyzes […] ... continue reading

February 05, 2010

Legal Hold Pro Called the “Best Vendor/Solution” at LegalTech 2010

Our team just returned from LegalTech New York after an exhilarating week in which we were able to make a big splash about Legal Hold Pro to the legal industry.  We believe we have the right solution — namely a cloud-based legal hold management system — at the right time. Brian Babineau, a Senior Analyst […] ... continue reading

February 04, 2010

Just Published! An in-depth analysis of Judge Scheindlin’s Pension Committee Opinion

“The analysis of Judge Scheindlin’s Pension Committee opinion is good, clear and useful.  Harris and Jablonski ably summarize the case and suggest ways to apply the ruling to legal hold directives.  It’s a fine piece of scholarship.” — Craig Ball We just published an in-depth analysis called “The Pension Committee Opinion: Judge Scheindlin’s Call to […] ... continue reading

January 19, 2010

“12 Myths about Legal Holds” Webinar on January 26 covers Zubulake to Judge Scheindlin’s Latest Opinion

Program Overview: The one-hour program will examine common misconceptions about legal holds using recent case law, including an analysis of U.S. District Judge Scheindlin’s recent Pension Committee opinion. John Jablonski and Brad Harris will look at problems that are frequently encountered within organizations that are failing to implement reasonable and good faith efforts when it […] ... continue reading

January 14, 2010

FLASH UPDATE! Judge Scheindlin Strongly Reiterates Need for Written Hold Notification

The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, et al., 05 Civ. 9016 (SDNY Jan. 11, 2010) Starting with the intro of her opinion, Judge Scheindlin invokes Santayana’s famous saying that “those who cannot remember the past are condemned to repeat it.”  This ominous start is […] ... continue reading

January 11, 2010

“12 Myths about Legal Holds” Is Now Available!

Today we released a new white paper titled “12 Myths about Legal Holds” authored by Brad Harris, the company’s new Director of Legal Products.  The first paper in the Legal Hold Pro™ Signature Series is available immediately at no cost at www.legalholdpro.com/myths. The 12-page publication zeroes in on common misconceptions about litigation holds that are […] ... continue reading

December 03, 2009

If You Don’t Issue a Hold, Now the Court May Do It for You

Synventive Molding Solutions v. Husky Injection Molding Systems, 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009) A recent case out of the U.S. District Court of Vermont may be the next seminal case for legal holds as the judge  clarified several ambiguous points around legal holds.  Judge Conroy’s opinion and order for Synventive […] ... continue reading

December 03, 2009

Florida Court Sanctions In-house Counsel for Spoliation Resulting from Poor Legal Hold

Swofford v. Eslinger, Case. No.6:08-cv-Orl-35DAB (FL.M.D. Sept. 28, 2009) This case started under confusing circumstances which resulted in Robert Swofford being shot seven times in his home by sheriff’s deputies in Orlando. After he recovered, he sued the sheriff’s office for negligence. Now, David Lane, the GC for the Seminole County Sheriffs Office is taking […] ... continue reading

August 18, 2009

Legal Hold Pro Alert: Pinstripe v. Manpower, Major Tours v. Colorel

A pair of recent rulings have shed additional light on the need for a strong, defensible legal hold implementation.  The two cases illustrate how the courts are intolerant when defendants are ignorant of the legal hold process: Pinstripe, Inc. v. Manpower, Inc. (7/29/09) – An un-issued legal hold and “good faith” efforts still yield sanction. […] ... continue reading