Intent or bad faith is required for Rule 37(e) sanctions

In this non-compete agreement case, plaintiffs moved for sanctions against a defendant that deleted emails supposedly containing “critical evidence.” The defendant argued that “he deleted emails on a regular basis unless there was a specific business reason to keep them”. He believed that all of the emails were backed up in a secure server. However, […]

Spoliation sanctions require ESI not being “restored or replaced”, a federal court held

In this breach of contract claim, Plaintiff moved for sanctions against Defendant for failing to produce emails related to the litigation. Specifically, Plaintiff asked the Court to grant a motion in limine to instruct the jurors that they may presume Defendant carried out or allowed the destruction of relevant evidence favorable to Plaintiff. Defendant argued […]

Federal court considered whether altering privacy settings of social media account entails spoliation

In a discrimination case (plaintiff had attempted to rent an apartment and she was allegedly refused because of her two young children), several of Plaintiff’s social media posts (Facebook, Instagram and Twitter) were relevant because, in Defendant’s view, they provided evidence of Plaintiff’s “emotional state and living circumstances after the alleged discrimination”. After some of those posts disappeared, […]

Nathan M. Crystal, Check if documents are retrievable before discarding your ruined device or you might get spoliation sanctions

A California federal court held that sanctions for spoliation are proper when a party consciously disregards its obligations to preserve relevant evidence (and in particular did not make sure that the documents were irretrievable before discarding the device allegedly destroyed by a power surge) and as result the other side is deprived of the documents […]

Deactivated social media accounts are discoverable and must be produced

In this personal injury case, the Eastern District Court of Louisiana issued a discovery order for the production of a deactivated Facebook account. These the facts: an employee sued his employer for an injury suffered on the job. However, the employer filed a request for production of the employee’s Facebook account claiming to have seen […]

Florida Proposed Advisory Opinion 14-1

Professional Ethics Committee of the Florida Bar Topic: “A Florida Bar member has asked the committee regarding the ethical obligations on 4 advising clients to “clean up” their social media pages before litigation is filed to remove 5 embarrassing information that the lawyer believes is not material to the litigation matter” From the opinion: In […]

John Browning, Dancing Around Facebook Spoliation

Law Technology News, Aug. 29, 2014 From the article “It’s almost always a bad idea to tell clients to “clean up” their Facebook accounts”. Author describes several authorities discussing lawyers’ conduct while advising clients on the use of social media sites, like Facebook, LinkedIn and Twitter. Mentioned Ethics Opinions: New York County Lawyers Association Ethics […]