Data Law Insights

Data Law Insights

Legal insights on navigating privacy, data protection, cybersecurity, information governance, and e-discovery

Category Archives: Spoliation

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Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2015 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “Digital Privacy and 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 digital privacy and e-discovery… Continue Reading

Brown v. Tellermate Holdings: Lessons in Preserving and Producing Cloud-Based Data and Effective Communication Between Counsel and Clients

Posted in Cloud Computing, Preservation, Rules, Sanctions, Spoliation
The recent decision in Brown v. Tellermate Holdings, out of the Southern District of Ohio, provides yet another valuable illustration of the critical need for litigation counsel to take reasonable steps to educate themselves about potentially relevant ESI in the possession, custody, or control of their clients and to take appropriate measures to preserve and… Continue Reading

BYOD Devices Create Many Challenges for Companies

Posted in Accessibility, Cloud Computing, Cybersecurity / Data Security, Data Breach, Information Management, Preservation, Social Media, Spoliation
In just the last few years, most companies – big and small – have embraced the Bring Your Own Device (BYOD) movement at varying levels from allowing employees to access company email on their personal smartphones all the way to not issuing company-owned computers and instead having employees bring in their personal laptops to access… Continue Reading

Hot Topics in Criminal E-Discovery

Posted in Criminal Law, Government Agencies, Privacy, Rules, Sanctions, Spoliation
As part of Crowell’s “Data Law Trends & Developments:  E-Discovery, Privacy, Cyber-Security & Information Governance,” Steve Byers and I examined the hottest topics in E-Discovery in Government Investigations and Criminal Litigation.  Our report begins on page 15, and explores recent trends in this rapidly expanding field and forecasts potential developments with Federal Rule of Evidence… Continue Reading

Fresh Look at E-Discovery in Government Investigations and Criminal Litigation

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Preservation, Privacy, Privilege/Rule 502, Public Sectors, Rules, Sanctions, Social Media, Spoliation
In conjunction with the 2014 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter 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… Continue Reading

Crowell & Moring Releases “Data Law Trends & Developments” and Announces Expanded “Data Law Insights” Blog

Posted in Accessibility, Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Data Breach, Ethics, Government Agencies, Government Contracting, Government Regulations & FISMA, Information Management, Preservation, Privacy, Privilege/Rule 502, Proportionality, Public Sectors, Rules, Sanctions, Social Media, Spoliation, Technology Assisted Review, Transnational Discovery
We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the… Continue Reading

California State Bar Offers Guidance on Attorney’s Ethical Duties in Handling E-Discovery

Posted in Accessibility, Cloud Computing, Cooperation/Meet & Confer, Ethics, Preservation, Privilege/Rule 502, Proportionality, Rules, Sanctions, Social Media, Spoliation, Technology Assisted Review
The State Bar of California may soon deem an otherwise highly skilled attorney to be “incompetent” in the practice of law if he or she does not know the basic steps to take with respect to electronic discovery and does nothing to fill that gap in knowledge. On February 28, 2014, California’s State Bar Standing… Continue Reading

Department Of Justice Reminds Us Again: Don’t Delete That Electronic Evidence

Posted in Criminal Law, Government Agencies, Spoliation
Last week, the Department of Justice announced that Kazuaki Fujitani, a former Denso Corporation executive, agreed to plead guilty to obstruction of justice charges in connection with an Antitrust Division price fixing investigation. Fujitani agreed to serve one year and one day in U.S. prison for destruction and concealment of records and documents under 18… Continue Reading

Eliminating ESI To Reduce Litigation Expense and Exposure: Sound Policy, But Not Without Some Risk

Posted in Preservation, Sanctions, Spoliation
Just last week, I published this article with a colleague in BNA’s Digital Discovery & e-Evidence® regarding the implications of a recent federal court decision for common document retention policies. The article—entitled “Terminating Sanction for Destroying Files to Avoid Suit Raises Concern for Document Retention Practices”—analyzes the court’s decision Slep-Tone Entertainment v. Granito (2014 BL… Continue Reading

Repeated E-Discovery Failures Lead to $1 Million Sanctions

Posted in Preservation, Proportionality, Sanctions, Spoliation
Last month, in In Re Pradaxa (Dabigatran Extexilate) Products Liability Litigation, a federal judge in the Southern District of Illinois ordered the defendants in a multi-district litigation (MDL) product liability case to pay nearly $1 million in sanctions for repeated and bad faith discovery violations, primarily based on the defendants’ failure to adequately preserve electronic… Continue Reading

Kansas Federal District Court Revamps ESI Guidelines To Address Developments in E-Discovery Case Law, TAR and Social Media Evidence

Posted in Cooperation/Meet & Confer, Preservation, Rules, Social Media, Spoliation, Technology Assisted Review
Earlier this month, the U.S. District Court for the District of Kansas “substantially revised its ESI guidelines to address that particularly critical and rapidly evolving subject.” As part of an ongoing effort to adapt its local rules and guidelines to ensure “that civil litigation actually is handled in the ‘just, speedy, and inexpensive’ manner contemplated… Continue Reading

Free BNA Webinar on ESI in Federal and State Criminal Actions

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States… Continue Reading

Judge Grewal Takes a Reasonable Approach to Defining the Scope of the Duty to Preserve

Posted in Preservation, Sanctions, Spoliation
It can be difficult to identify the point at which the duty to preserve relevant information for litigation is triggered. What is often more difficult, however, is defining the scope of what must be preserved after the duty has been triggered. Given the vast (and growing) volume of electronically stored information (ESI) typically maintained, organizations… Continue Reading

Spoliation of ESI Charged as Criminal Offense Under Computer Fraud and Abuse Act

Posted in Criminal Law, Government Agencies, Preservation, Sanctions, Spoliation
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 .… Continue Reading

Bring Your Own Device (BYOD) Policies Also Bring Risk And Cost

Posted in Accessibility, Admissibility, Cloud Computing, Cybersecurity / Data Security, Information Management, Preservation, Privacy, Sanctions, Social Media, Spoliation
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… Continue Reading

New Look at E-Discovery in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Government Agencies, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
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 of ESI,… Continue Reading

Good Faith Not Good Enough? Ninth Circuit May Require a Remedial Jury Instruction After Government Spoliation in a Criminal Case

Posted in Criminal Law, Government Agencies, Preservation, Sanctions, Spoliation
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… Continue Reading

When Should Discovery-Related Sanctions Be Imposed on Parties, Inside Counsel and/or Outside Counsel?

Posted in Preservation, Sanctions, Spoliation
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… Continue Reading

ESI in Government Investigations and Criminal Matters (VIDEO)

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
Back in February, I spoke at the at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” During my presentation, I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to… Continue Reading

Social Media Evidence in Government Investigations and Criminal Proceedings

Posted in Admissibility, Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Ethics, Government Agencies, Information Management, Preservation, Privacy, Rules, Sanctions, Social Media, Spoliation
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, including… Continue Reading

Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

Posted in Cloud Computing, Cooperation/Meet & Confer, Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Information Management, Privacy, Social Media, Spoliation
Last week, I was one of the featured speakers at the Richmond Journal of Law and Technology’s annual symposium, titled “E-Discovery: A New Frontier.” I discussed many of the new and cutting edge issues facing practitioners in government investigations and criminal litigation, including pre-indictment practice, various constitutional issues, privacy, and various issues relating to social… Continue Reading

Court Awards $4.5 Million In Attorneys’ Fees and Expenses as Spoliation Sanction for Bad Faith Deletion of Email and Other ESI

Posted in Criminal Law, Preservation, Sanctions, Spoliation
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… Continue Reading

Forecasting 2013 E-discovery Trends Involving Spoliation, Predictive Coding, Social Media, and More

Posted in Cloud Computing, Information Management, Rules, Sanctions, Social Media, Spoliation, Technology Assisted Review
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 the… Continue Reading

Government Sanctioned for Spoliation in $32 Million Bid Protest

Posted in Government Agencies, Government Contracting, Government Regulations & FISMA, Preservation, Sanctions, Spoliation
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… Continue Reading