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Symantec eDiscovery

Showing posts tagged with Duty to Preserve
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Sanctions – Putting Teeth into Your Litigation Response Effort
pfavro | 20 Jun 2011 | 0 comments

Do you think the risk of discovery sanctions is overblown?

For litigants who became “newsworthy” because they were sanctioned, the answer is no. 

But many organizations observe their discovery obligations as if sanctions were no threat at all.  They feel little incentive to implement a process that will have the company prepared for litigation.  http://bit.ly/jjWNR6  Worse, there are others who view discovery misconduct – e.g., refusals to produce documents in response to requests or orders – as “tactically advantageous.”  See Lee v. Max Intern., LLC, --- F.3d --- (10th Cir. 2011), http://bit.ly/kg4n6L.  Whether intentional or inadvertent, such conduct unreasonably lengthens the litigation process and increases the expense for all involved.  It also belies the mandate from Federal Rule 1 to discover efficiently...

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Observing Best Practices for Your Litigation Response Effort
pfavro | 14 Jun 2011 | 0 comments

Is your organization adequately prepared for a lawsuit?  Or are you still trying to develop an internal process for addressing document productions in litigation?

Preparing a litigation response effort is an essential aspect of a company’s information governance plan.  Failing to take the initiative in this regard often leads to higher legal costs and increased risks during litigation.  The Vieste, LLC v. Hill Redwood Development (N.D. Ca. June 6, 2011) case from last week is particularly instructive on this issue.

In Vieste, the court sanctioned several real estate developers for submitting inadequate declarations regarding their document preservation efforts.  Those declarations reveal an overall failure to prepare for litigation.  Among other things, the defendant developers did not issue a litigation hold; did not suspend the overwrite function of one of their computer systems; and waited several months to contact...

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The Federal Circuit Finds Document Retention Policies are Essential for Information Governance
pfavro | 17 May 2011 | 0 comments

In two decisive blows, the Federal Circuit tipped the litigation scales decisively against Rambus in the long running DRAM memory chip dispute against Micron Technology and Hynix Semiconductor.  The Federal Circuit found that Rambus spoliated evidence by destroying over 300 boxes of documents as part of its pre-litigation “Licensing/Litigation Readiness” strategy.  However, in so doing, the court held that organizations may lawfully discard data by implementing neutral document retention policies.

Significant to that holding was the Federal Circuit’s reasoning regarding when a litigant’s duty to preserve is triggered.  Rambus argued that the duty attaches once litigation is “imminent.”  That position was rejected since it was too generous to alleged spoliators.  Instead, the court applied the long-standing rule that the duty begins when litigation is “pending or reasonably foreseeable.”

By...

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