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Showing posts tagged with Rule 37
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pfavro | 27 Jun 2011 | 0 comments

The landmark sanctions order in Phillip M. Adams & Associates v. Dell, 621 F.Supp.2d 1173 (D. Utah 2009) has been adopted by U.S. District Judge Ted Stewart.  Finally made available to the public last week after a nine-month delay (, Judge Stewart’s order ( PACER, sign-up req’d) fully embraced the magistrate’s holding that organizations have an obligation to preserve relevant evidence after the duty to preserve attaches.  The court thus imposed a negative inference jury instruction against defendants Asustek Computer and Asus Computer Intl. for their evidence spoliation.  It should come as no surprise that the jury then returned a verdict against those defendants.

With the Adams sanction order finally in the books, it is worth reviewing why that decision was so noteworthy....

pfavro | 27 May 2011 | 0 comments

Several recent court cases have imposed sanctions on companies that unwittingly turn over the duty to manage, archive and discard data to their rank and file employees.  One of the latest examples – Suntrust Mortgage, Inc. v. AIG United Guaranty Corp. (E.D. Va. Mar. 29, 2011) – demonstrates how expensive that approach to information governance can be.

In Suntrust Mortgage, a Virginia federal court issued sanctions against plaintiff Suntrust for falsifying evidence.  Several key emails between the parties that supported the defendant’s arguments were altered by a Suntrust employee to bolster the plaintiff’s claims.  When the truth eventually came out, Suntrust’s credibility – and pocketbook – took a hit.  Indeed, a motion for attorney fees is now pending to recoup the nearly $4 million the defendant incurred to address that malfeasance.

While evidence falsification is an uncommon occurrence...

pfavro | 20 May 2011 | 0 comments

Are you learning the lessons of eDiscovery history?  Or are you doomed to repeat the same mistakes of those lawyers whose companies and careers were damaged by eDiscovery failures?

While there are many such lessons to be learned, one stands out in particular for companies seeking to minimize litigation risks and reduce operating expenses:  the Federal Rule of Civil Procedure 37(e) safe harbor for the destruction of electronic information.  This provision can be a “get out of jail free” card for savvy organizations that have followed best practices for information governance.

How can your company "play this card"?  For more information, read a brief article from the Daily Journal last month in the following link  Entitled “Learning the Lessons of eDiscovery:  Information Governance and the Safe Harbor,...