Sanctions

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In a prior post, I wrote about a criminal trade secrets theft case in which spoliation in related civil litigation was charged as obstruction of justice. I noted that “[t]he prospect of criminal charges for spoliation in civil litigation raises the stakes for civil litigants, particularly where a parallel criminal investigation is a possibility . . . .” Last week, this scenario arose again, as it was announced that Halliburton will plead guilty to a criminal offense based on ESI spoliation that appears to have first arisen in the massive civil litigation over the Deepwater Horizon disaster.

According to the Information and Plea Agreement, following the Deepwater Horizon oil spill, Halliburton employees used a proprietary 3D modeling program to examine aspects of the drilling equipment on two occasions. On both occasions, the employees were told to delete the resulting data and reluctantly did so. Halliburton was a contractor to BP, and these events seem to have been uncovered by BP in the ensuing civil litigation when it became apparent from Halliburton emails that the 3D modeling data once existed but had not been produced. Resolution of this spoliation issue in the civil litigation is still pending. In the meantime, however, the spoliation became the basis for a criminal charge against Halliburton in the parallel criminal investigation by the Department of Justice.
Continue Reading Spoliation of ESI Charged as Criminal Offense Under Computer Fraud and Abuse Act

Document dumps deliberately comprising significant numbers of non-responsive documents are of course never appropriate and have long been frowned upon by the courts. Neither is it appropriate to deliberately bury a smoking gun document in the middle of a heap of marginally responsive documents. Both tactics long predate ESI.

But the ever-increasing volume of ESI—now often measured in terabytes—exacerbates the problem these tactics exploit. Why?

Because lawyers more and more find themselves dealing with such large volumes of documents—millions or even tens of millions of pages—that they struggle to identify only the documents responsive to an adversary’s request in a cost-effective manner and to produce those documents in a reasonably organized fashion even when acting in good faith. Well-intentioned counsel can find themselves facing claims of hiding documents in a production or dumping nonresponsive documents on the other side merely because the sheer volume of documents collected, reviewed, and ultimately produced—coupled with erring on the side of over-inclusion—yields a haystack so large that even a bucket of needles would be hard to find.
Continue Reading Avoiding Sanctions in E-Discovery When Producing Voluminous ESI

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,…

I remember when “apps” meant chips and salsa or maybe some buffalo wings and fried mozzarella sticks before dinner.  “Apps” used to clutter my table.  Now they clutter my tablet—largely thanks to my kids, who are as proficient with the thing as I am. 

According to Apple, there is an app for just about anything.  But not all apps are created equal.  In fact, according to one federal judge, “some Apps are fatally flawed and should be recalled.” 

Just last week, in Howard v. Segway, Inc., 2013 WL 869955 (N. D. Okl. March 7, 2013), U.S. Magistrate Judge Paul Cleary sanctioned Segway for discovery misconduct, awarding the plaintiffs fees and costs associated with a motion to compel.  Judge Cleary concluded that—although the plaintiffs’ discovery requests were far from perfect—Segway’s discovery responses and corresponding document productions ran afoul of its duties under the Federal Rules.
Continue Reading Discovery Misconduct and Sanctions: There’s No App for That!

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

Crowell & Moring recently published its Litigation Forecast 2013. This report explores critical litigation issues, provides concise, forward-looking perspectives on trends, and identifies cases to watch in ten areas of law affecting a wide range of companies and industries in 2013 and beyond. The report includes a discussion of significant e-discovery developments, focusing on…