Spoliation

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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?

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…

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,…

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 media.

Michael Yager, Director of e-discovery at Spotts Fain, presented on “E-discovery as Quantum Law.” Michael discussed how developments in e-discovery law have been no less shattering to practitioners in the “classic” practice of law than the introduction of quantum theory to physics. He described the clash of cultures within the practice of e-discovery, and also argued that the introduction of ESI has created a noticeable shift in jurisprudence related to e-discovery, causing a “cultural explosion” within a segment of the legal profession not seen in any other profession since the development of Quantum physics approximately a century ago.
Continue Reading Reflections on the Richmond Journal of Law and Technology’s Annual Survey and Symposium

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…

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…

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…

Litigation costs are far too often driven up by an unnecessarily adversarial approach to discovery. Many clients and their counsel continue to believe that their litigation interests are best served through contention and a lack of reasonable candor. They are mistaken.

Several years ago, The Sedona Conference® addressed this issue with its Cooperation Proclamation, which called for increased cooperation in discovery. Since then, courts increasingly have encouraged cooperation, and commended those who do so.

For example, in Kleen Products LLC v. Packaging Corp. of Am., 2012 WL 4498465 (N.D. Ill. Sept. 28, 2012), the magistrate judge praised “the lawyers and their clients for conducting their discovery obligations in a collaborative manner.” The court applauded the parties for avoiding needless motion practice through meaningful meet-and-confers that began early and continued through discovery.

Since its publication, the Cooperation Proclamation has received nearly 150 judicial endorsements. Yet, the cooperation commended in Kleen Products remains too much of a rarity. Many litigants and their lawyers still don’t play nice in the sandbox. That needs to change.
Continue Reading A Call for Increased Cooperation: Litigants and their lawyers need to meet and confer early and often—and learn how to do so effectively—and courts need to encourage cooperation through greater facilitation and sanctions