On June 20, 2013, I participated in a one-hour webinar regarding “Bring Your Own Device” (or BYOD) policies. I addressed certain e-discovery issues involving BYOD policies. An audio recording and instructional slides are available here for those who missed it. The webinar was part of a monthly series entitled Third Thursday – Crowell & Moring’s Labor and Employment Update. This series is dedicated to helping our clients stay on top of developing law, emerging compliance issues, and best practices. I had the pleasure of joining my colleagues Tom Gies and Chris Calsyn from our Labor & Employment Group on the roundtable panel.
Continue Reading Bring Your Own Device (BYOD) Policies Also Bring Risk And Cost

In conjunction with the 2013 American Bar Association annual State of Criminal Justice, I have published a new article on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search and seizure

A finding of bad faith is not required for a remedial jury instruction when the government’s negligent destruction of evidence significantly prejudices a defendant, the Ninth Circuit ruled earlier this month in its panel decision in United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.). However, bad faith—or a showing that the exculpatory nature of spoliated evidence was apparent to the government—remains necessary for complete dismissal under Arizona v. Youngblood, 488 U.S. 51 (1988).

In June 2010, Victor Hugo Sivilla loaned his Jeep to his sister’s boyfriend for several hours. Two days later, Sivilla was arrested after U.S. border agents found $160,000 worth of cocaine and heroin in his vehicle’s engine manifold. After photographing the Jeep’s engine compartment, the case agent turned the vehicle over to the Department of Homeland Security (DHS) forfeiture section.
Continue Reading Good Faith Not Good Enough? Ninth Circuit May Require a Remedial Jury Instruction After Government Spoliation in a Criminal Case

We all know that discovery is never perfect, particularly when it involves the collection, review and production of large volumes of electronically stored information. But when is discovery good enough? And what standards should govern when one party challenges another party’s production as deficient?

These are extremely difficult issues for courts to resolve and, not surprising, courts have not been entirely uniform in their approach. However, that’s only the first step because when a court finds that discovery has been so deficient that sanctions are warranted, it must then determine what sanctions to impose and whether to impose them on the party, inside counsel, outside counsel, or some combination thereof.
Continue Reading When Should Discovery-Related Sanctions Be Imposed on Parties, Inside Counsel and/or Outside Counsel?

In conjunction with the Richmond Journal or Law and Technology’s annual survey, Adrian Fontecilla and I have published a new article: Social Media Evidence in Government Investigations and Criminal Proceedings. The article provides an in-depth look at many of the cutting edge issues raised by social media in government investigations and the criminal context,

Recently I was a speaker at the 27th Annual National Institute on White Collar Crime’s “E-Discovery in Government Investigations and Criminal Litigation” panel. Our panel discussed a number of important and cutting edge issues relating to challenges faced by white collar litigants in dealing with ESI, including the preservation and production of ESI, developments in the law of search and seizure of digital devices, and other constitutional and post-indictment challenges.

I was joined on the panel by Roy Altman, Assistant U.S. Attorney for the Southern District of Florida, the Honorable Craig Shaffer, U.S. Magistrate Judge for the District of Colorado, Lisa Ghannoum with Baker & Hostetler, and Erin Nealy Cox, Executive Managing Director for Stroz Friedberg. We discussed the importance of having a meaningful “meet and confer” with the government pre-indictment relating to subpoena requests – grand jury or otherwise – from the government and the risks associated with failing to preserve information in a government investigation. We also discussed the criminal ESI protocol, its relative small impact in white collar matters, and ethical issues relating to the collection and use of social media in government investigations.
Continue Reading Reflections on the 2013 ABA National Institute on White Collar Crime

I have previously written about the spoliation litigation and sanctions in the DuPont v. Kolon trade secrets dispute, in which Crowell & Moring represents the plaintiff and which resulted in a $920 million jury verdict for our client DuPont. The deletion of ESI by the defendant in that case resulted in an adverse inference jury instruction at trial and even spawned criminal obstruction of justice charges. Now the district court in the civil litigation has awarded DuPont $4.5 million in attorney’s fees and expenses as an additional sanction, which was the full amount sought by DuPont.

The court’s opinion explains why the $4.5 million sanction – one of the largest fee-based spoliation sanctions to date – was fully justified. The level of effort expended by DuPont’s lawyers and vendors was driven in part by what the court described as the defendant’s “overall obfuscatory conduct” which resulted in “a long, and oftentimes tortuous, journey on the part of DuPont to get to the bottom of the alleged deletion of files and email items by key Kolon employees.” The lesson here of course is that one must be careful about waging a pitched battle over discovery into known spoliation given that the client will likely have to foot the bill. That is an entirely foreseeable outcome where the allegations have merit because an award of fees and expenses is a common spoliation sanction.
Continue Reading Court Awards $4.5 Million In Attorneys’ Fees and Expenses as Spoliation Sanction for Bad Faith Deletion of Email and Other ESI

On January 14, 2013, a federal court sanctioned the government for failing to preserve a website advertising a $32 million Department of Veterans Affairs procurement, finding that the Federal Acquisition Regulations requiring the government to preserve documents related to procurements triggered its duty to preserve the website. Noting that the government’s conduct amounted to negligence

So what kind of impact has the Federal Circuit Model Order had on the cost of patent litigation in the year since its adoption?

The hottest topic in patent e-discovery one year ago was Federal Circuit Chief Judge Rader’s remarks to the Eastern District of Texas Judicial Conference on the judiciary’s role in curbing discovery excesses. There, he unveiled the Federal Circuit’s “Model Order Regarding E-Discovery in Patent Cases,” the first formal effort to address e-discovery costs in patent litigation. The most prominent features of the Model Order were:

  • Exclusion of email from general production requests.
  • Phasing email production requests until after the parties have exchanged initial disclosures and basic patent documentation.
  • Propounding email production requests only for specific issues rather than general discovery.
  • Limiting email production requests to five custodians and five search terms per custodian.
  • Cost shifting for disproportionate ESI production requests.
  • Exclusion of metadata other than sent/received dates and distribution list.

Continue Reading Federal Circuit’s Model Order for E-Discovery in Patent Cases, One Year Later: Increasing Judicial Involvement in Reducing Discovery Costs

Social media pervades our world and has evolved into one of the core pillars of modern communication, shaping how we do business, learn about and share news, and engage with family and friends.  It is also undeniably a critical, new frontier of government investigations and criminal proceedings. 

In a new article published by Bloomberg and