US Case Law Update: Failing to suspend routine document retention process leads to sanctions

December 15, 2021

In a recent case from the United States, the failure to properly implement a legal hold led to a motion for spoliation sanctions.

In Mahboob v. Educ. Credit Mgmt. Corp., Case No.: 15-cv-0628-TWR-AGS (S.D. Cal. Mar. 1, 2021), the plaintiff alleged that the defendant failed to suspend its two-year document retention policy, which resulted in the loss of months of relevant call data and recordings. Countering, the defendant argued that the plaintiff’s motion should be denied due to unreasonable delay.

In the result, the Magistrate Judge granted the plaintiff’s motion for spoliation sanctions, in part. … Read More

Chan-Glasgow Moderates Panel at Ontario Digital Evidence & eDiscovery Institute

Candice Chan-Glasgow, Director, Review Services and Counsel, will moderate a panel at the upcoming Ontario Digital Evidence and eDiscovery Institute webcast in Toronto on November 22nd.

Now in its 11th year, this program is jointly sponsored by the Ontario Bar Association, the Law Society of Ontario and The Advocates’ Society. Bringing together leading experts to get attendees up to speed on the latest developments in eDiscovery and digital evidence this year’s program will focus on a case study involving a litigation matter between an individual litigant and a large corporation.

The stellar faculty will share perspectives of both sides to the litigation and highlight the key issues and challenges that the litigants will face as they navigate the eDiscovery process. … Read More

To what Extent do Lawyers need to Supervise Document Disclosure?

Vladyslav (Vlad) Strashko

Associate

November 8, 2021

In 2020, several US court decisions dealt with lawyers who failed to properly supervise the discovery process, for example by allowing their clients to “self-collect” records (see Equal Emp’t Opportunity Comm’n v. M1 5100 Corp., Civil No. 19-cv-81320-DIMITROULEAS/MATTHEWMAN (S.D. Fla. Jul. 2, 2020)) or not taking reasonable effort to ensure that the client produced all required documents (see Optronic Techs. v. Ningbo Sunny Elec. Co., Case No. 16-cv-06370-EJD (VKD) (N.D. Cal. Jun. 1, 2020)).

In the first example, the lawyer received a warning from the judge, but escaped sanctions because the discovery process was not yet complete. … Read More

Towards More Efficient and Cost-effective Discovery

Crystal O’Donnell

Chief Executive Officer and Senior Counsel

November 3, 2021

Discovery is typically the most time-consuming and expensive aspect of any legal dispute. This article provides some practical guidance and key tips for minimizing risk and cost for enterprises involved in disputes or regulatory matters that require the production of electronically stored information (ESI).

The most effective way to minimize eDiscovery cost and risk is to start with good document management and retention policies. While document management and retention are substantive and complex areas, there are a couple things that do not require software or expenditure that can make a substantial difference. … Read More

eDiscovery Issues: Spoliation and Intent

Harry Chang

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