eDiscovery Issues: Spoliation and Intent

Associate

October 28, 2021

In a recent US decision, Cretacci v. Hare, No.: 4:19-CV-55-SKL (E.D. Tenn. Jan. 20, 2021), the court found that the plaintiffs failed to prove that the defendants intentionally deprived them of the video evidence of an alleged assault as required under Rule 37 of the United States Federal Rules of Civil Procedure. The defendants had received a written request to preserve the video evidence from the plaintiff’s counsel within 30 days of an alleged assault but took no reasonable measures to preserve the requested video, and the video was later deleted.… Read More

Cost-Effective Document Disclosure in Construction Arbitration

Martin Felsky

Senior Counsel

October 22, 2021

There are four rules-based approaches to document disclosure in legal disputes. From broadest to narrowest they are:

Relevant: Each party discloses all documents relevant to the issues in dispute.
Responsive: Each party discloses documents responsive to requests by the other party.
Material: Each party discloses only those documents that could have an impact on the outcome of the dispute.
Reliance: Each party discloses only those documents upon which it intends to rely.

Each of these approaches is often supplemented by two underlying principles: first, a party can always be ordered to produce a document the arbitrator deems relevant (which enhances fairness but expands disclosure), and second, all disclosure models may be subject to proportionality, so that the cost of disclosure does not overtake its value to the parties.… Read More

Discovery in the Yukon

Vladyslav (Vlad) Strashko

Associate

October 20, 2021

A recent decision, Chance Oil and Gas Limited v Yukon (Energy, Mines and Resources), 2021 YKSC 44 (CanLII) , provides a good window into the discovery process in the Yukon.

In this case, both sides filed applications to compel each other to meet their document discovery obligations. The plaintiff claimed that the defendant grossly under-produced by listing only 445 documents in its affidavit of documents. The defendant alleged that the plaintiff, in contrast, overproduced by listing over 34,000 documents, some of which were not relevant.

First, the court pointed that the expression “every document relating to any matter in issue in an action” relating to disclosure obligations in Rule 25 of the Rules of Court has been given a broad and liberal interpretation by the courts.… Read More

eDiscovery Preparedness – Technology Options

Crystal O’Donnell

Chief Executive Officer and Senior Counsel

October 13, 2021

Proactive management of electronic information is one of the best ways to minimize costs and risks associated with eDiscovery. This includes enterprises making decisions on the appropriate approach to managing eDiscovery based on needs, volume and resources available.

Over the last few years, the options available to enterprises to manage eDiscovery needs have changed considerably. The choices of available technology have increased, the functionality available has improved (and continues to improve), and the options for purchasing the technology have also changed.

While there is a wide spectrum amongst the below list, generally speaking, enterprises have the following options for managing eDiscovery:

Outsourcing
In-House
Hybrid

Outsourcing

Many enterprises leave all aspects of eDiscovery to external litigation counsel to manage as part of the litigation, including the decision to further outsource the eDiscovery work to vendors. … Read More

Is a De-activated Social Media Account Producible?

Harry Chang

Associate

October 6, 2021

The recent US decision in Brown v. SSA Atl., LLC, CV419-303 (S.D. Ga. Mar. 15, 2021) emphasizes the importance of understanding what constitutes spoliation in the context of social media evidence.

The plaintiff in this case was evasive about his social media presence on Facebook. The defendant initiated a motion for sanctions for “alleged spoliation of electronically stored evidence, specifically his social media accounts.” The court denied the spoliation motion ruling based on the lack of evidence that the Facebook information had been “irretrievably lost.” Instead of sanctions, the court directed the production of the Facebook accounts as an alternative remedy.… Read More