Chart of Spoliation Sanctions by Circuit Court:
Information included for each sanction:
- Scope of Duty to Preserve
- Can conduct be culpable per se without consideration of reasonableness?
- Culpability and prejudice requirements....
- for sanctions in general
- for dispositive sanctions
- for adverse inference instruction
- for a rebuttable presumption of relevance
- What constitutes prejudice?
- Culpability and corresponding jury instructions
1) Appellate courts in New York are strictly enforcing contracts as written in foreclosure cases, with few exceptions. 2) One trend in 2012 was that the Second Department, located in New York City, reviewed the most foreclosure cases and therefore established the most legal precedents. 3) Lenders without proof of owning the promissory note at the start of the case lack legal standing to bring a foreclosure action.
This document summarizes key appellate decisions from 2012 regarding mortgage foreclosure cases in New York. Some of the main points covered include courts strictly enforcing contracts as written; the "where is the note" defense requiring plaintiffs to prove they own the promissory note; standards for lost notes; defects in standing cannot be corrected; no need to substitute plaintiff after note is sold; purchasers of failed banks' assets having standing; proceedings must be against the estate of a deceased person; limits on enforcing merger clauses; allowable counterclaims; reimbursement only for authorized maintenance costs; seeking court approval to expand receiver's powers; setting aside foreclosure not required for auctioning less property; and plaintiffs still prevailing when full payment is late.
John gellene talk lou jones breakfast materialsLaser Haas
The document summarizes the case of U.S. v. Gellene, in which John Gellene, a partner at the law firm Milbank, was convicted of bankruptcy fraud and perjury for making false statements and omissions in required disclosures to the bankruptcy court regarding Milbank's representation of other parties in the Bucyrus-Erie bankruptcy case. While Gellene claimed he did not have fraudulent intent and some of his omissions were not material, the court found the evidence showed Gellene understood disclosure requirements and intentionally withheld information over two years. The case is presented as a cautionary tale for lawyers, but one where pressures of large firm practice and a "tournament" culture,
Mark Anchor Albert National Survey Of Breach Of Contract ElementsMark Albert
This document lists the elements required to establish a breach of contract claim in each of the 50 US states and Washington DC. Generally, the elements are: (1) the existence of a valid contract, (2) performance or excuse of non-performance by the plaintiff, (3) breach by the defendant, and (4) damages resulting from the breach. For each jurisdiction, a relevant case citation is provided that outlines that state's requirements for breach of contract along with a brief synopsis of the governing law.
1) The plaintiffs, a photographer and his company, brought this action against their former agent MCA and its individual owners to recover unpaid fees of $400,484.97 for work performed.
2) MCA became insolvent in 2010 and stopped paying the plaintiffs in 2012. The plaintiffs allege that the individual defendants fraudulently transferred money from MCA's accounts to themselves.
3) The defendants move for summary judgment dismissing some claims, while two individual defendants seek to dismiss all claims against them. The court must determine if there are any genuine disputes of material fact.
This document summarizes the key elements of the offence of criminal damage under the Criminal Damage Act 1971. It discusses:
1) The three main types of criminal damage offenses - section 1(1) criminal damage, section 1(2) criminal damage with intent to endanger life, and section 1(3) arson.
2) The actus reus and mens rea requirements for a section 1(1) criminal damage offense. It also discusses what constitutes damage and property belonging to another.
3) Available defenses to criminal damage including lawful excuse and the defendant's honest belief. It provides case examples analyzing the defenses.
Jefferies claims WFG Investments did not have permissionSusan Harriman
This document is Jefferies LLC's brief in support of its motion for a preliminary injunction to prevent Defendants from pursuing arbitration against it. Jefferies argues that it is not bound to arbitrate because it does not have a written agreement to arbitrate with Defendants, and Defendants were not Jefferies' customers. Jefferies contends it will suffer irreparable harm if forced to arbitrate, the balance of equities is in its favor, and an injunction is in the public interest. Therefore, Jefferies believes the court should grant its motion and enjoin Defendants from pursuing arbitration against it.
This document is a motion to dismiss claims brought by a Chapter 7 bankruptcy trustee against a debtor. The trustee claimed the debtor's post-bankruptcy personal injury settlement was a pre-bankruptcy asset. However, the motion argues the debtor's injury and cause of action did not accrue until years after bankruptcy discharge, based on the state's definition of when a personal injury cause of action accrues. It asserts the trustee failed to plead fraud with particularity and the settlement was not an asset of the bankruptcy estate under state law since the injury occurred post-discharge. The motion seeks dismissal on the grounds that the trustee's claims lack merit and were improperly brought.
1) Appellate courts in New York are strictly enforcing contracts as written in foreclosure cases, with few exceptions. 2) One trend in 2012 was that the Second Department, located in New York City, reviewed the most foreclosure cases and therefore established the most legal precedents. 3) Lenders without proof of owning the promissory note at the start of the case lack legal standing to bring a foreclosure action.
This document summarizes key appellate decisions from 2012 regarding mortgage foreclosure cases in New York. Some of the main points covered include courts strictly enforcing contracts as written; the "where is the note" defense requiring plaintiffs to prove they own the promissory note; standards for lost notes; defects in standing cannot be corrected; no need to substitute plaintiff after note is sold; purchasers of failed banks' assets having standing; proceedings must be against the estate of a deceased person; limits on enforcing merger clauses; allowable counterclaims; reimbursement only for authorized maintenance costs; seeking court approval to expand receiver's powers; setting aside foreclosure not required for auctioning less property; and plaintiffs still prevailing when full payment is late.
John gellene talk lou jones breakfast materialsLaser Haas
The document summarizes the case of U.S. v. Gellene, in which John Gellene, a partner at the law firm Milbank, was convicted of bankruptcy fraud and perjury for making false statements and omissions in required disclosures to the bankruptcy court regarding Milbank's representation of other parties in the Bucyrus-Erie bankruptcy case. While Gellene claimed he did not have fraudulent intent and some of his omissions were not material, the court found the evidence showed Gellene understood disclosure requirements and intentionally withheld information over two years. The case is presented as a cautionary tale for lawyers, but one where pressures of large firm practice and a "tournament" culture,
Mark Anchor Albert National Survey Of Breach Of Contract ElementsMark Albert
This document lists the elements required to establish a breach of contract claim in each of the 50 US states and Washington DC. Generally, the elements are: (1) the existence of a valid contract, (2) performance or excuse of non-performance by the plaintiff, (3) breach by the defendant, and (4) damages resulting from the breach. For each jurisdiction, a relevant case citation is provided that outlines that state's requirements for breach of contract along with a brief synopsis of the governing law.
1) The plaintiffs, a photographer and his company, brought this action against their former agent MCA and its individual owners to recover unpaid fees of $400,484.97 for work performed.
2) MCA became insolvent in 2010 and stopped paying the plaintiffs in 2012. The plaintiffs allege that the individual defendants fraudulently transferred money from MCA's accounts to themselves.
3) The defendants move for summary judgment dismissing some claims, while two individual defendants seek to dismiss all claims against them. The court must determine if there are any genuine disputes of material fact.
This document summarizes the key elements of the offence of criminal damage under the Criminal Damage Act 1971. It discusses:
1) The three main types of criminal damage offenses - section 1(1) criminal damage, section 1(2) criminal damage with intent to endanger life, and section 1(3) arson.
2) The actus reus and mens rea requirements for a section 1(1) criminal damage offense. It also discusses what constitutes damage and property belonging to another.
3) Available defenses to criminal damage including lawful excuse and the defendant's honest belief. It provides case examples analyzing the defenses.
Jefferies claims WFG Investments did not have permissionSusan Harriman
This document is Jefferies LLC's brief in support of its motion for a preliminary injunction to prevent Defendants from pursuing arbitration against it. Jefferies argues that it is not bound to arbitrate because it does not have a written agreement to arbitrate with Defendants, and Defendants were not Jefferies' customers. Jefferies contends it will suffer irreparable harm if forced to arbitrate, the balance of equities is in its favor, and an injunction is in the public interest. Therefore, Jefferies believes the court should grant its motion and enjoin Defendants from pursuing arbitration against it.
This document is a motion to dismiss claims brought by a Chapter 7 bankruptcy trustee against a debtor. The trustee claimed the debtor's post-bankruptcy personal injury settlement was a pre-bankruptcy asset. However, the motion argues the debtor's injury and cause of action did not accrue until years after bankruptcy discharge, based on the state's definition of when a personal injury cause of action accrues. It asserts the trustee failed to plead fraud with particularity and the settlement was not an asset of the bankruptcy estate under state law since the injury occurred post-discharge. The motion seeks dismissal on the grounds that the trustee's claims lack merit and were improperly brought.
Bolender Presentation to Defense Research Institute: Key Construction Related...jeffbolender
Mr. Bolender presented this slide show in conjunction with his presentation of the Defense Research Institute\'s annual 2010 Construction Law Seminar, which was held at the Bellagio Hotel in Las Vegas, Nevada. The slideshow and article address key construction related insurance issues from 2009 to 2010.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is a memorandum and order from a United States District Court case involving claims brought by plaintiffs against defendants related to two books co-authored and authored by Greg Mortenson. The plaintiffs allege that the books, which were marketed and sold as nonfiction, contained fabrications. The court provides background on the plaintiffs, defendants, books in question, and procedural history of the case. It then discusses the standards for evaluating motions to dismiss under Rules 8, 9, and 12(b)(6) of the Federal Rules of Civil Procedure. Finally, the court analyzes the plaintiffs' twelve asserted causes of action.
Jones v. Arjun re Costs (2015 BCSC 1881)Kate Taylor
This ruling addresses costs in a personal injury case involving two motor vehicle accidents. The court found the plaintiff's injuries from the two accidents were indivisible. The plaintiff made an offer to settle for more than was ultimately awarded at trial. The court ruled the plaintiff was entitled to double costs after the date of the settlement offer, finding the offer was reasonably capable of acceptance given the medical evidence establishing indivisible injuries and risks to the defendants.
First Natl Acceptance Co. v. City of Utica_12-cv-01622-0[1]James Evans
This case concerns the demolition of an apartment building owned by John Gosnell in Utica, New York. First National Acceptance Company held a mortgage on the property. The City of Utica inspected the building and issued notices of violations to Gosnell, but did not notify First National or follow certain statutory procedures. First National claims the demolition violated its due process rights. The court will determine if issues of material fact exist regarding whether Utica followed applicable laws in declaring the building unsafe and ordering its demolition.
Monongalia County Circuit Court Order Overturning Morgantown, WV Fracking BanMarcellus Drilling News
Copy of the court order issued by Judge Susan Tucker, Circuit Court Judge for Monongalia County, WV, overturning the ban on hydraulic fracturing passed by Morgantown, WV. The decision says the state Department of Environmental Protection has the lead regulatory role in oil and gas drilling and cannot be superseded by a local municipality.
This special master's report deals with the division of property owned by Tom Smith and Jane Doe as tenants in common. The report finds that:
1) The property must be sold, rather than partitioned, due to the small lot size and hostility between the parties.
2) The property must be sold to a third party, as neither Smith nor Doe presented sufficient evidence of their ability to qualify for financing to purchase the other's share.
3) The fair market value of the property is $258,000 based on testimony from real estate agents. The sale proceeds will be divided according to the parties' respective shares as determined in the report.
This document is a court ruling denying Deutsche Bank's application for foreclosure on a property owned by Gustavo Castellanos. The judge ruled that Deutsche Bank lacked standing to bring the case, as they had assigned the mortgage to another company, MTGLQ Investor, prior to the court hearing the application. The judge criticized large financial institutions for treating homeowners as "cattle" rather than human beings. The ruling also provided background on subprime mortgages and how Mr. Castellanos' loan was indicative of predatory lending practices.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
Hieleras ruled deprivation of constitutional rightsBryan Johnson
This order grants a preliminary injunction requiring the US Border Patrol to comply with its own guidelines for holding detainees, based on evidence that detainees' basic human needs were not being met. The court found the plaintiffs were likely to succeed on their claims that conditions violated detainees' due process rights by depriving them of adequate sleep, hygiene, medical care, food and water, and warmth. While acknowledging funding constraints, the court ruled constitutional rights cannot be denied for fiscal reasons and ordered compliance with guidelines to provide these basic needs as outlined in the Border Patrol's 2008 policy and TEDS standards.
This document is a court order from a United States District Court case between Michele Reinhart, Dan Donovan, Deborah Netter and others against Greg Mortenson, David Oliver Relin, Penguin Group (USA) and others. The order grants the plaintiffs' motion to file a fourth amended complaint and to drop and add parties. It denies the plaintiffs' motion for preservation of documents, finding the defendants are already aware of their duty to preserve evidence. It also denies all other pending motions as moot without prejudice to renew them appropriately.
Clyde Beck is accused of making a slanderous comment at a political rally. The plaintiff initially filed a defamation claim, but it was barred by the one-year statute of limitations. The plaintiff is now trying to pursue an intentional infliction of emotional distress claim based on the same facts. The document analyzes whether the plaintiff can avoid the statute of limitations by recasting the claim, and whether a slander claim satisfies the elements of intentional infliction of emotional distress.
Edwards protests public domain of citizenfourPublicLeaks
This document summary provides case details from the docket annotation. The case Edwards et al v. Snowden et al with case number 2:14-cv-02631-JAR-TJJ was filed on December 19, 2014 and last updated on February 22, 2015. The docket annotation notes that two copies of a DVD, labeled as Exhibit 1 to the Defendant's Motion to Dismiss, were received. The DVD contained the Citizenfour documentary.
James Walters Kellogg & Andelson - declaration 8.4.93jamesmaredmond
This document is a declaration by James F. Walters, a certified public accountant, in opposition to an application for a writ of attachment in a court case between City National Bank and Stephen Blanchard. Walters declares that he has served as the accountant for Blanchard and his construction company. He attended a meeting between Blanchard and the chairman of CNB to discuss the bank reneging on commitments to provide financing for one of Blanchard's real estate development projects. Walters asserts that most of the funds referenced in CNB's complaint were used by Blanchard for personal expenses rather than business purposes.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document summarizes viOxx verdicts and litigation strategies related to lawsuits against Merck over the drug. It provides a table of 14 viOxx trials from 2005-2006 listing the plaintiff, compensation awarded, and punitive damages. It notes averages across trials and estimates Merck's potential liability depending on the number of cases going to trial and success rate. It also outlines the number of pending viOxx claims and discusses Merck's view that a mass settlement may not happen for years.
This document summarizes the key findings of a survey of 100 senior in-house counsel on the state of e-discovery. The survey found that counsel give internal and external e-discovery resources an average effectiveness grade of 6.5 out of 10. Understanding the potential evidence universe early in a case and reducing processing fees were the most important e-discovery management factors. Over half of companies have adopted cloud-based storage and hired outside vendors to improve e-discovery. The average annual e-discovery spending is $10.7 million and over 40% expect spending to increase.
An effective vendor risk management program can help companies fortify their risk management initiatives and address regulatory, cybersecurity, and privacy concerns. Key steps in establishing a program include identifying all vendors and what data they access, mapping data flows, classifying vendors by risk tier, generating a risk-based questionnaire, and implementing ongoing monitoring programs. Companies should start by conferring with IT, business units, and accounting to understand data and vendors. A dedicated individual should own the program, though legal, compliance, and auditing should also be involved. Outsourcing the initial setup to an experienced firm can help get a program off the ground efficiently.
The document discusses how legal technology will change the business of law. It describes three categories of legal technology solutions: enabler technologies, support process solutions, and substantive law solutions. While adoption has been slower in law firms than other industries, legal technology is moving from automating standard tasks to supporting more complex, specialized legal work. Both large and small law firms will need to adapt their business models to the changing landscape. Large firms should invest in technology and leverage outsourcing to meet rising client demands, while small firms may need to specialize and offer fixed pricing models to remain competitive.
Legal week Strategic Technology forum 2016Ben Wightwick
The document outlines an agenda for a meeting that includes introductions of Nick Andrews from Linklaters, Oz Benamram from White & Case, and Rachel Roberts from Burges Salmon. It then discusses ongoing discussions in legal such as technology vs process improvement, billing models, growth strategies, and offshoring. It poses the question - regardless of a firm's size or model, what do they need to do to be successful in the future? It suggests that SmartLaw requires focusing on clients through a supportive culture and intelligent use of technology.
Bolender Presentation to Defense Research Institute: Key Construction Related...jeffbolender
Mr. Bolender presented this slide show in conjunction with his presentation of the Defense Research Institute\'s annual 2010 Construction Law Seminar, which was held at the Bellagio Hotel in Las Vegas, Nevada. The slideshow and article address key construction related insurance issues from 2009 to 2010.
Doc962 freeman group motion compromise & settlement_ a walk-awaymalp2009
The Trustee filed a motion seeking court approval of a compromise and settlement agreement between the Trustee and the Freeman Parties. The agreement provides that Robert Freeman and David Ward will withdraw their respective $92,500 proof of claims against the estate with prejudice, and the Trustee will dismiss the Freeman Parties from an adversary proceeding. The agreement achieves a walk-away settlement and full mutual release of claims between the parties. The Trustee believes the settlement is in the best interest of creditors and the estate by avoiding substantial time and costs of litigation, despite believing there are good objections to the proof of claims.
This document is a memorandum and order from a United States District Court case involving claims brought by plaintiffs against defendants related to two books co-authored and authored by Greg Mortenson. The plaintiffs allege that the books, which were marketed and sold as nonfiction, contained fabrications. The court provides background on the plaintiffs, defendants, books in question, and procedural history of the case. It then discusses the standards for evaluating motions to dismiss under Rules 8, 9, and 12(b)(6) of the Federal Rules of Civil Procedure. Finally, the court analyzes the plaintiffs' twelve asserted causes of action.
Jones v. Arjun re Costs (2015 BCSC 1881)Kate Taylor
This ruling addresses costs in a personal injury case involving two motor vehicle accidents. The court found the plaintiff's injuries from the two accidents were indivisible. The plaintiff made an offer to settle for more than was ultimately awarded at trial. The court ruled the plaintiff was entitled to double costs after the date of the settlement offer, finding the offer was reasonably capable of acceptance given the medical evidence establishing indivisible injuries and risks to the defendants.
First Natl Acceptance Co. v. City of Utica_12-cv-01622-0[1]James Evans
This case concerns the demolition of an apartment building owned by John Gosnell in Utica, New York. First National Acceptance Company held a mortgage on the property. The City of Utica inspected the building and issued notices of violations to Gosnell, but did not notify First National or follow certain statutory procedures. First National claims the demolition violated its due process rights. The court will determine if issues of material fact exist regarding whether Utica followed applicable laws in declaring the building unsafe and ordering its demolition.
Monongalia County Circuit Court Order Overturning Morgantown, WV Fracking BanMarcellus Drilling News
Copy of the court order issued by Judge Susan Tucker, Circuit Court Judge for Monongalia County, WV, overturning the ban on hydraulic fracturing passed by Morgantown, WV. The decision says the state Department of Environmental Protection has the lead regulatory role in oil and gas drilling and cannot be superseded by a local municipality.
This special master's report deals with the division of property owned by Tom Smith and Jane Doe as tenants in common. The report finds that:
1) The property must be sold, rather than partitioned, due to the small lot size and hostility between the parties.
2) The property must be sold to a third party, as neither Smith nor Doe presented sufficient evidence of their ability to qualify for financing to purchase the other's share.
3) The fair market value of the property is $258,000 based on testimony from real estate agents. The sale proceeds will be divided according to the parties' respective shares as determined in the report.
This document is a court ruling denying Deutsche Bank's application for foreclosure on a property owned by Gustavo Castellanos. The judge ruled that Deutsche Bank lacked standing to bring the case, as they had assigned the mortgage to another company, MTGLQ Investor, prior to the court hearing the application. The judge criticized large financial institutions for treating homeowners as "cattle" rather than human beings. The ruling also provided background on subprime mortgages and how Mr. Castellanos' loan was indicative of predatory lending practices.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
Hieleras ruled deprivation of constitutional rightsBryan Johnson
This order grants a preliminary injunction requiring the US Border Patrol to comply with its own guidelines for holding detainees, based on evidence that detainees' basic human needs were not being met. The court found the plaintiffs were likely to succeed on their claims that conditions violated detainees' due process rights by depriving them of adequate sleep, hygiene, medical care, food and water, and warmth. While acknowledging funding constraints, the court ruled constitutional rights cannot be denied for fiscal reasons and ordered compliance with guidelines to provide these basic needs as outlined in the Border Patrol's 2008 policy and TEDS standards.
This document is a court order from a United States District Court case between Michele Reinhart, Dan Donovan, Deborah Netter and others against Greg Mortenson, David Oliver Relin, Penguin Group (USA) and others. The order grants the plaintiffs' motion to file a fourth amended complaint and to drop and add parties. It denies the plaintiffs' motion for preservation of documents, finding the defendants are already aware of their duty to preserve evidence. It also denies all other pending motions as moot without prejudice to renew them appropriately.
Clyde Beck is accused of making a slanderous comment at a political rally. The plaintiff initially filed a defamation claim, but it was barred by the one-year statute of limitations. The plaintiff is now trying to pursue an intentional infliction of emotional distress claim based on the same facts. The document analyzes whether the plaintiff can avoid the statute of limitations by recasting the claim, and whether a slander claim satisfies the elements of intentional infliction of emotional distress.
Edwards protests public domain of citizenfourPublicLeaks
This document summary provides case details from the docket annotation. The case Edwards et al v. Snowden et al with case number 2:14-cv-02631-JAR-TJJ was filed on December 19, 2014 and last updated on February 22, 2015. The docket annotation notes that two copies of a DVD, labeled as Exhibit 1 to the Defendant's Motion to Dismiss, were received. The DVD contained the Citizenfour documentary.
James Walters Kellogg & Andelson - declaration 8.4.93jamesmaredmond
This document is a declaration by James F. Walters, a certified public accountant, in opposition to an application for a writ of attachment in a court case between City National Bank and Stephen Blanchard. Walters declares that he has served as the accountant for Blanchard and his construction company. He attended a meeting between Blanchard and the chairman of CNB to discuss the bank reneging on commitments to provide financing for one of Blanchard's real estate development projects. Walters asserts that most of the funds referenced in CNB's complaint were used by Blanchard for personal expenses rather than business purposes.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document summarizes viOxx verdicts and litigation strategies related to lawsuits against Merck over the drug. It provides a table of 14 viOxx trials from 2005-2006 listing the plaintiff, compensation awarded, and punitive damages. It notes averages across trials and estimates Merck's potential liability depending on the number of cases going to trial and success rate. It also outlines the number of pending viOxx claims and discusses Merck's view that a mass settlement may not happen for years.
This document summarizes the key findings of a survey of 100 senior in-house counsel on the state of e-discovery. The survey found that counsel give internal and external e-discovery resources an average effectiveness grade of 6.5 out of 10. Understanding the potential evidence universe early in a case and reducing processing fees were the most important e-discovery management factors. Over half of companies have adopted cloud-based storage and hired outside vendors to improve e-discovery. The average annual e-discovery spending is $10.7 million and over 40% expect spending to increase.
An effective vendor risk management program can help companies fortify their risk management initiatives and address regulatory, cybersecurity, and privacy concerns. Key steps in establishing a program include identifying all vendors and what data they access, mapping data flows, classifying vendors by risk tier, generating a risk-based questionnaire, and implementing ongoing monitoring programs. Companies should start by conferring with IT, business units, and accounting to understand data and vendors. A dedicated individual should own the program, though legal, compliance, and auditing should also be involved. Outsourcing the initial setup to an experienced firm can help get a program off the ground efficiently.
The document discusses how legal technology will change the business of law. It describes three categories of legal technology solutions: enabler technologies, support process solutions, and substantive law solutions. While adoption has been slower in law firms than other industries, legal technology is moving from automating standard tasks to supporting more complex, specialized legal work. Both large and small law firms will need to adapt their business models to the changing landscape. Large firms should invest in technology and leverage outsourcing to meet rising client demands, while small firms may need to specialize and offer fixed pricing models to remain competitive.
Legal week Strategic Technology forum 2016Ben Wightwick
The document outlines an agenda for a meeting that includes introductions of Nick Andrews from Linklaters, Oz Benamram from White & Case, and Rachel Roberts from Burges Salmon. It then discusses ongoing discussions in legal such as technology vs process improvement, billing models, growth strategies, and offshoring. It poses the question - regardless of a firm's size or model, what do they need to do to be successful in the future? It suggests that SmartLaw requires focusing on clients through a supportive culture and intelligent use of technology.
Analytics and Data Visualization in the Legal MarketLexisNexis
Legal work requires being able to identify and recognize patterns in patterns in information – or data – quickly and efficiently. According to this Blue Hill Research report, this practice’s popularity is continuing to grow, and plays a pivotal role in today’s legal industry, allowing those who practice law to gain a better understanding of relationships between datasets. In fact, the ability to see data visually may give users the opportunity of identifying unnoticed relationships between these data sets.
eDiscovery Business Confidence Survey - Summer 2016 ResultsRob Robinson
The eDiscovery Business Confidence Survey is a non-scientific quarterly survey designed to provide insight into the business confidence level of individuals working in the eDiscovery ecosystem. The term ‘business’ represents the economic factors that impact the creation, delivery, and consumption of eDiscovery products and services.
Cut End-to-End eDiscovery Time in Half: Leveraging the CloudDruva
Today legal hold data requests expand far beyond traditional email server requirements. Last year alone, 62% of requests included data from mobile devices and 37% from cloud application services. As the data volumes increase, Legal and IT teams can no longer continue to rely on legacy eDiscovery processes that are both inefficient and costly.
Our experts discussed how the latest generation of eDiscovery solutions, using native-cloud technologies, are dramatically reducing both data collection and ingestion times, while significantly increasing the speed and efficiencies of the analysis and review process. Hear how legal and IT teams can:
* Extend data collection to endpoints and cloud apps to centrally collect, preserve and classify information
* Increase transparency for senior lawyers and corporate counsel through automated real-time metrics
* Achieve cloud-to-cloud data transfer to reduce the risk of data spoliation while removing the need for physical collection and shipping
By moving your eDiscovery process to the cloud, IT can quickly respond to their legal department’s inquiries, and legal teams gain faster data ingestion times along with high speed processing, analysis, and review.
To view the webcast: http://pages2.druva.com/eDiscovery-in-Cloud_On-Demand.html
The BTI Client Service A-Team 2016 gives you the facts you need to boost client service based on actual client feedback. Learn what the top performers, The BTI Client Service 30, are doing to outpace competitors. Get details on more than 320 law firms—by name—with word-for-word insights on how clients define the 17 activities driving client relationships, including comprehensive profiles of the best-of-the-best in client service. (Length: 172 pages)
Predictive Coding and E-Discovery in 2015 and Beyond - LegalTechNYC 2013 ( Da...Daniel Katz
This document discusses predictive coding and machine learning methods for e-discovery. It begins by explaining that predictive coding relies on supervised machine learning methods, which use human-coded training sets to classify documents as relevant or non-relevant. The document then discusses different types of supervised and unsupervised machine learning algorithms that could be used for predictive coding. It suggests that using prior cases to inform feature selection and weightings could make algorithms "smarter." Finally, it considers whether discovery costs will eventually be reduced due to scaling relationships for cost per gigabyte and long-term rates of electronic data growth.
The Future of Analytics, Data Integration and BI on Big Data PlatformsMark Rittman
The document discusses the future of analytics, data integration, and business intelligence (BI) on big data platforms like Hadoop. It covers how BI has evolved from old-school data warehousing to enterprise BI tools to utilizing big data platforms. New technologies like Impala, Kudu, and dataflow pipelines have made Hadoop fast and suitable for analytics. Machine learning can be used for automatic schema discovery. Emerging open-source BI tools and platforms, along with notebooks, bring new approaches to BI. Hadoop has become the default platform and future for analytics.
New Strategies for More Effective Remote/Branch Office Data ProtectionDruva
Managing and protecting data across remote and branch offices (ROBO) is one of the top challenges IT teams face. Low bandwidth, insufficient infrastructure, and little-to-no onsite IT staff make protecting this data a struggle and this problem are further compounded by the number of sites within an organization.
In this on-demand webinar, Data Protection Analyst Jason Buffington at Enterprise Strategy Group (ESG) and Druva will provide new research on ROBO trends and how to best address the growing challenges presented by them.
Discussion topics:
- Trends affecting the ROBO landscape today
- How the cloud can ease the burden of data protection at remote locations
- Steps to build a centralized, scalable data protection program
To watch the on-demand version, please visit: http://bit.ly/ESGROBOSLIDESHARE
Building the Workforce for the Future: 16 Smart Inside Sales Trends in 2016 [...OpenView
Sales expert, Josiane Feigon, presents her 2016 sales trend report. The theme for 2016 is all about building the Workforce for the Future. No, that doesn’t mean building your own AI Butlers or Pepper Robots. Nah, we sales humans are much more interesting than that. In fact, this is the first time in history when five generations are working together side by side. These multi-cultural, multi-generational, multi-sexual and multi-talented tribes all want to share the stage. Managing and growing this talent is central to the long-term success of business and the Internet of Things economy.
The document provides information about scaling a sales team from three speakers. Grace Mason discusses how to attract and hire top sales reps in a competitive market, including resume review, digging deeper into a candidate's background, understanding the market, selling the opportunity to candidates, clearly defining profiles and processes. Dhruv Markandey covers creating an effective onboarding plan to get new reps ramped up faster through personalized, scalable and structured programs. Terry Kelman discusses streamlining sales processes for revenue impact at different stages of a company's growth, including how sales approaches change from early adoption to revenue explosions.
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Spoliation Sanctions by Circuit Courts (printable chart)
1. Spoliation Sanctions by Circuit
Adapted from the Appendix to U.S. Magistrate Judge Paul W. Grimm‟s Victor Stanley II opinion
Victor Stanley, Inc. v. Creative Pipe, Inc., et al. (D.MD, Sept. 9, 2010)
Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
First Circuit It is a duty to
preserve potentially
relevant evidence a
party owns or
controls and also a
duty to notify the
opposing party of
evidence in the
hands of third
parties.
Velez v. Marriott PR
Mgmt., Inc., 590 F.
Supp. 2d 235, 258
(D.P.R. 2008).
This specific issue
has not been
addressed.
“The measure of
the appropriate
sanctions will
depend on the
severity of the
prejudice suffered.”
Velez v. Marriott PR
Mgmt., Inc., 590 F.
Supp. 2d 235, 259
(D.P.R. 2008).
“[C]arelessness is
enough for a district
court to consider
imposing
sanctions.”
Driggin v. Am. Sec.
Alarm Co., 141 F.
Supp. 2d 113, 123
(D. Me. 2000).
“severe prejudice or
egregious conduct”
Driggin v. Am. Sec.
Alarm Co., 141 F.
Supp. 2d 113, 123
(D. Me. 2000).
“does not require
bad faith or
comparable bad
motive”
Trull v. Volkswagen
of Am., Inc., 187
F.3d 88, 95 (1st
Cir. 1999); Oxley v.
Penobscot County,
No. CV-09-21-JAW,
2010 WL 3154975
(D. Me. 2010)
Whether relevance
can be presumed
has not been
addressed.
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Velez v. Marriott PR
Mgmt., Inc., 590 F.
Supp. 2d 235, 259
(D.P.R. 2008).
Intentional
spoliation;
permissive adverse
inference if the jury
finds that the
spoliator knew of
the lawsuit and the
documents‟
relevance when it
destroyed them
Testa v. Wal-Mart
Stores, Inc., 144
F.3d 173, 178 (1st
Cir. 1998).
2. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Second Circuit Documents that
are potentially
relevant to likely
litigation “are
considered to be
under a party‟s
control,” such that
the party has a duty
to preserve them,
“when that party
has the right,
authority, or
practical ability to
obtain the
documents from a
non-party to the
action.”
In re NTL, Inc. Sec.
Litig., 244 F.R.D.
179, 195 (S.D.N.Y.
2007).
The duty extends to
key players.
Zubulake v. UBS
Warburg LLC, 220
F.R.D. 212, 217
(S.D.N.Y. 2003).
Yes; specific
actions, such as the
failure “to issue a
written litigation
hold,” constitute
gross negligence
per se.
Pension Comm. of
the Univ. of
Montreal Pension
Plan v. Banc of Am.
Sec., 685 F. Supp.
2d 456, 471
(S.D.N.Y. 2010).
“[D]iscovery
sanctions…may be
imposed upon a
party that has
breached a
discovery obligation
not only through
bad faith or gross
negligence, but also
through ordinary
negligence.”
Residential Funding
Corp. v. DeGeorge
Fin. Corp., 306 F.3d
99, 113 (2d Cir.
2002).
“‟willfulness, bad
faith, or fault on the
part of the
sanctioned party‟”
Dahoda v. John
Deere Co., 216 Fed.
App‟x 124, 125,
2007 WL 491846,
at *1 (2d Cir. 2007)
(quoting West v.
Goodyear Tire &
Rubber Co., 167
F.3d 776, 779 (2d
Cir. 1999)).
Gross negligence
Pension Comm. of
the Univ. of
Montreal Pension
Plan v. Banc of Am.
Sec., 685 F. Supp.
2d 456, 478-79
(S.D.N.Y. 2010).
Negligence
Residential Funding
Corp. v. DeGeorge
Fin. Corp., 306 F.3d
99, 108 (2d Cir.
2002).
Intentional conduct
In re Terrorist
Bombings of U.S.
Embassies in East
Africa, 552 F.3d 93,
148 (2d Cir. 2008).
Bad faith or gross
negligence
Pension Comm. of
the Univ. of
Montreal Pension
Plan v. Banc of Am.
Sec., 685 F. Supp.
2d 456, 467
(S.D.N.Y. 2010).
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Pension Comm. of
the Univ. of
Montreal Pension
Plan v. Banc of Am.
Sec., 685 F. Supp.
Sec. 2d 456, 479
(S.D.N.Y. 2010)
Grossly negligent
conduct;
permissible
inference of “the
relevance of the
missing documents
and resulting
prejudice to
the…Defendants.
subject to the
plaintiffs‟ ability to
rebut the
presumption to the
satisfaction of the
trier of fact.”
Pension Comm. of
the Univ. of
Montreal Pension
Plan v. Banc of Am.
Sec., 685 F. Supp.
2d 456, 478
(S.D.N.Y.
2010)
Spoliation Sanctions by Circuit | Page 2
3. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Third Circuit Potentially relevant
evidence; “„it is
essential that the
evidence in
question be within
the party's control.‟”
Canton v. Kmart
Corp., No. 1:05-CV-
143, 2009 WL
2058908, at *2
(D.V.I. July 13,
2009) (quoting
Brewer v. Quaker
State Oil Refining
Corp., 72 F.3d 326,
334 (3d Cir. 1995))
No; conduct is
culpable if “party
[with] notice that
evidence is relevant
to an action…either
proceeds to destroy
that evidence or
allows it to be
destroyed by
failing to take
reasonable
precautions”
Canton v. Kmart
Corp., No. 1:05-CV-
143, 2009 WL
2058908, at *3
(D.V.I. July 13,
2009) (quoting
Mosaid Techs., Inc.
v. Samsung Elecs.
Co., 348 F. Supp.
2d 332, 338 (D.N.J.
2004)) (emphasis
added).
Bad faith
Bensel v. Allied
Pilots Ass'n, 263
F.R.D. 150, 152
(D.N.J. 2009).
The degree of fault
is considered, and
Dispositive
sanctions “should
only be imposed in
the most
extraordinary of
see circumstances,”
Mosaid Techs., Inc.
v. Samsung Elecs.
Co., 348 F. Supp.
2d 332, 335 (D.N.J.
2004), but a
minimum degree of
culpability has not
been identified
Negligence
Canton v. Kmart
Corp., No. 1:05-CV-
143, 2009 WL
2058908, at *2-3
(D.V.I. July 13,
2009)
Intentional conduct
Brewer v. Quaker
State Oil Refining
Corp., 72 F.3d 326,
334 (3d Cir. 1995)
Whether relevance
can be presumed
has not been
addressed
Spoliation of
evidence that would
have helped a
party‟s case
In re Hechinger Inv.
Co. of Del., Inc.,
489 F.3d 568, 579
(3d Cir. 2007)
Intentional
spoliation;
permissible
inference
Mosaid Techs., Inc.
v. Samsung Elecs.
Co., 348 F. Supp.
2d
332, 334 (D.N.J.
2004)
Spoliation Sanctions by Circuit | Page 3
4. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Fourth Circuit Documents that are
potentially relevant
to likely litigation
“are considered to
be under a party‟s
control,” such that
the party has a duty
to preserve them,
“when that party
has „the right,
authority, or
practical ability to
obtain the
documents from a
non-party to the
action.‟”
Goodman v. Praxair
Servs., Inc., 632 F.
Supp. 2d 494, 515
(D. Md. 2009)
(citation omitted).
It is also a duty to
notify the opposing
party of evidence in
the hands of third
parties.
Silvestri v. Gen.
Motors Corp., 271
F.3d 583, 590 (4th
Cir. 2001).
Duty extends to key
players.
Goodman, 632 F.
Supp. 2d at 512
The U.S. District
Court for the
District of Maryland
has quoted
Zubulake IV, 220
F.R.D. at 220
(“Once the duty to
preserve attaches,
any destruction of
documents is, at a
minimum,
negligent.”). See
Sampson v. City of
Cambridge, No.
WDQ-06-1819,
2008 WL 7514364,
at *8 (D. Md. May
1, 2008) (finding
defendant‟s conduct
negligent); Pandora
Jewelry, LLC v.
Chamilia LLC , No.
CCB-06-3041, 2008
WL 4533902, at *9
(D. Md. Sept. 30,
2008) (finding
defendant‟s conduct
grossly negligent);
cf. Goodman, 632
F. Supp. 2d at 522
(stating that
defendant, “much
like the defendants
in Sampson and
Pandora, was
clearly negligent”
because it failed to
implement a
litigation hold, but
also explaining why
such action was
negligent).
“only a showing of
fault, with the
degree of fault
impacting the
severity of
sanctions”
Sampson v. City of
Cambridge, 251
F.R.D. 172, 179 (D.
Md. 2008) (using
“fault” to describe
conduct ranging
from bad faith
destruction to
ordinary
negligence).
The court must “be
able to conclude
either (1) that the
spoliator‟s conduct
was so egregious as
to amount to a
forfeiture of his
claim, or (2) that
the effect of the
spoliator's conduct
was so prejudicial
that it substantially
denied the
defendant the
ability to defend the
claim.”
Silvestri v. Gen.
Motors Corp., 271
F.3d 583, 593 (4th
Cir. 2001).
The court “must
only find that
spoliator acted
willfully in the
destruction of
evidence.”
Goodman v. Praxair
Servs., Inc., 632 F.
Supp. 2d 494, 519
(D. Md. 2009).
Willful behavior
Sampson v. City of
Cambridge, 251
F.R.D. 172, 179 (D.
Md. 2008).
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Goodman v. Praxair
Servs., Inc., 632 F.
Supp. 2d 494, 519
(D. Md. 2009);
Sampson v. City of
Cambridge,
F.R.D. 172, 180 (D.
Md. 2008).
Willful spoliation;
adverse jury
instruction, but not
the “series of fact-
specific adverse
jury instructions”
that the plaintiff
requested
Goodman v. Praxair
Servs., Inc., 632 F.
Supp. 2d 494, 523
(D. Md. 2009).
Spoliation Sanctions by Circuit | Page 4
5. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Fifth Circuit Party with control
over potentially
relevant evidence
has a duty to
preserve it; scope
includes evidence in
possession of
“employees likely to
have relevant
information, i.e.,
„the key players‟”
Tango Transp., LLC
v. Transp. Int‟l Pool,
Inc., No. 5:08-CV-
0559, 2009 WL
3254882, at *3
(W.D. La. Oct. 8,
2009)
No: “Whether
preservation or
discovery conduct is
acceptable in a case
depends on what is
reasonable, and
that in turn
depends on
whether what was
done - or not done
– was proportional
to that case and
consistent with
clearly established
applicable
standards.”
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 613
(S.D. Tex. 2010).
“some degree of
culpability”
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 613
(S.D. Tex. 2010).
Bad faith (and
prejudice)
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 614
(S.D. Tex. 2010)
Bad faith
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 617
(S.D. Tex. 2010)
“The Fifth Circuit
has not explicitly
addressed whether
even bad-faith
destruction of
evidence allows a
court to presume
that the destroyed
evidence was
relevant or its loss
prejudicial.”
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 617-
18 (S.D. Tex. 2010)
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 613
(S.D. Tex. 2010)
Willful spoliation;
jury instruction
would “ask the jury
to decide whether
the defendants
intentionally deleted
emails and
attachments to
prevent their use in
litigation.”
Rimkus Consulting
Group, Inc. v.
Cammarata, 688 F.
Supp. 2d 598, 620,
646 (S.D. Tex.
2010).
Spoliation Sanctions by Circuit | Page 5
6. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Sixth Circuit It is a duty to
preserve potentially
relevant evidence
that a party owns
or controls and to
notify the opposing
party of evidence in
the hands of third
parties.
Jain v. Memphis
Shelby Airport
Auth., No. 08-2119-
STA-dkv, 2010 WL
711328, at *2
(W.D. Tenn. Feb.
25, 2010).
Duty extends to key
players
In re Nat‟l Century
Fin. Enters., Inc.
Fin. Inv. Litig., No.
2:03-md-1565,
2009 WL 2169174,
at *11 (S.D. Ohio
July 16, 2009).
This specific issue
has not been
addressed. In
BancorpSouth Bank
v. Herter, 643 F.
Supp. 2d 1041,
1061 (W.D. Tenn.
2009), the court
quoted Zubulake IV,
220 F.R.D. at 220
(“Once the duty to
preserve attaches,
any destruction of
documents is, at a
minimum,
negligent.”), but it
also analyzed the
defendant‟s conduct
to make the finding
that it was “more
than negligent.”
Bad faith
(intentional)
destruction, gross
negligence, or
ordinary negligence
In re Global
Technovations, Inc.,
431 B.R. 739, 780
(Bankr. E.D. Mich.
2010) (equating
intentional and bad
faith conduct).
willfulness, bad
faith, or fault
In re Global
Technovations, Inc.,
431 B.R. 739, 779
(Bankr. E.D. Mich.
2010) (using “fault”
to describe conduct
ranging from
intentional conduct
to ordinary
negligence).
Other cases in
circuit define
“fault” as
objectively
unreasonable
behavior.” E.g.,
BancorpSouth Bank
v. Herter, 643 F.
Supp. 2d 1041,
1060 (W.D. Tenn.
v. 2009); Jain v.
Memphis Shelby
Airport Auth., 08-
2119-STA-dkv,
2010 WL 711328,
at *3 (W.D. Tenn.
Feb. 25, 2010).
Bad faith
In re Global
Technovations,
Inc., 431 B.R. 739,
782 (Bankr. E.D.
Mich. 2010).
Bad faith not
required
Miller v. Home
Depot USA, Inc.,
No. 3-08-0281,
2010 WL 373860,
at *1 (M.D. Tenn.
Jan. 28, 2010).
Ordinary negligence
Jain v. Memphis
Shelby Airport
Auth., No. 08-
2119-STA-dkv,
2010 WL 711328,
at *3 (W.D. Tenn.
Feb. 25, 2010);
Forest Labs., Inc. v.
Caraco Pharm.
Labs., Ltd., No. 06-
CV-13143, 2009 WL
998402, at *5-6
(E.D. Mich. Apr. 14,
2009).
“The spoliating
party bears the
burden of
establishing lack of
prejudice to the
opposing party, a
burden the Sixth
Circuit has
described as „an
uphill battle.‟”
Jain v. Memphis
Shelby Airport
Auth., No. 08-2119-
STA-dkv, 2010 WL
711328, at *2
(W.D. Tenn. Feb.
25, 2010).
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Jain v. Memphis
Shelby Airport
Auth., No. 08-2119-
STA-dkv, 2010 WL
711328, at *4
(W.D. Tenn. Feb.
25,
2010)
Unintentional
conduct;
permissible
inference
Jain v. Memphis
Shelby Airport
Auth., No. 08-
2119-STA-dkv,
2010 WL 711328,
at *4-5 (W.D. Tenn.
Feb. 25, 2010)
Spoliation Sanctions by Circuit | Page 6
7. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Seventh
Circuit
Duty to preserve
potentially relevant
evidence party has
control over
Jones v. Bremen
High Sch. Dist. 228,
No. 08-C-3548,
2010 WL 2106640,
at *5 (N.D. Ill. May
25, 2010).
No: Breach is failure
to act reasonably
under the
circumstances
Jones v. Bremen
High Sch. Dist. 228,
No. 08-C-3548,
2010 WL 2106640,
at *6-7 (N.D. Ill.
May 25, 2010).
“The failure to
institute a
document retention
policy, in the form
of a litigation hold,
is relevant to the
court's
consideration, but it
is not per se
evidence of
sanctionable
conduct.”
Haynes v. Dart, No.
08 C 4834, 2010
WL 140387, at *4
(N.D. Ill. Jan. 11,
2010)
Willfulness, bad
faith, or fault
Jones v. Bremen
High Sch. Dist. 228,
No. 08-C-3548,
2010 WL 2106640,
at *5 (N.D. Ill. May
25, 2010). (stating
that fault is based
on the
reasonableness of
the party‟s
conduct).
Bad faith
BP Amoco Chemical
Co. v. Flint Hills
Resources, LLC, No.
05 C 5, 2010 WL
1131660, at *24
(N.D. Ill. Mar. 25,
2010).
Willfulness, bad
faith, or fault
In re Kmart Corp.,
371 B.R. 823, 840
(Bankr. N.D. Ill.
2007) (noting that
fault, while based
on reasonableness,
is more than a
“„slight error in
judgment‟”)
(citation omitted)
Bad faith
Faas v. Sears,
Roebuck & Co., 532
F.3d 633, 644 (7th
Cir. 2008).
Unintentional
conduct is
insufficient for
presumption of
relevance
In re Kmart Corp.,
371 B.R. 823, 853-
54 (Bankr. N.D. Ill.
2007)
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Krumwiede v.
Brighton Assocs.,
L.L.C., No. 05-C-
3003, 2006 WL
1308629, at *10
(N.D. Ill. May 8,
2006).
When spoliation
substantially denies
a party the ability to
support or defend
the claim OR delays
production of
evidence
Jones v. Bremen
High Sch. Dist. 228,
No. 08-C-3548,
2010 WL 2106640,
at *8-9 (N.D. Ill.
May 25, 2010).
Grossly negligent
conduct; jury
instruction to inform
the jury of the
defendant‟s duty
and breach thereof
Jones v. Bremen
High Sch. Dist. 228,
No. 08-C-3548,
2010 WL 2106640,
at *10 (N.D. Ill.
May 25, 2010).
Spoliation Sanctions by Circuit | Page 7
8. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Eighth Circuit Duty to preserve
potentially relevant
documents in
party‟s possession
Dillon v. Nissan
Motor Co., 986 F.2d
263, 267 (8th Cir.
1993).
Courts in the Eighth
Circuit have not
found conduct
culpable without
analyzing the facts,
although
reasonableness is
not discussed.
Bad faith
Wright v. City of
Salisbury, No.
2:07CV0056 AGF,
2010 WL 126011,
at *2 (E.D. Mo. Apr.
6, 2010).
Bad faith
Johnson v. Avco
Corp., No. 4:07CV
1695 CDP, 2010 WL
1329361, at
*13 (E.D. Mo.
2010); Menz v. New
Holland N. Am.,
Inc., 440 F.3d
1002, 1006 (8th
Cir. 2006).
Bad faith
Greyhound Lines,
Inc. v. Wade, 485
F.3d 1032, 1035
(8th Cir. 2007);
Menz v. New
Holland N. Am.,
Inc., 440 F.3d
1002, 1006 (8th
Cir. 2006);
Stevenson v. Union
Pac. RR, 354 F.3d
739, 747 (8th Cir.
2004) (bad faith
required if
spoliation happens
pre-litigation)
Bad faith is not
required to sanction
for “the ongoing
destruction of
records during
litigation and
discovery.”
Stevenson, 354
F.3d at 750;
MeccaTech, Inc. v.
Kiser, 2008 WL
6010937, at *8 (D.
Neb. 2008) (same),
adopted in part, No.
8:05CV570,
2009 WL 1152267
(D. Neb. Apr. 23,
2009).
This issue has not
been addressed,
but it has been
stated that there is
no presumption of
irrelevance of
intentionally
destroyed
documents.
Alexander v. Nat‟l
Farmers Org., 687
F.2d 1173, 1205
(8th Cir. 1982).
Destruction of
evidence that “may
have [been] helpful”
Dillon v. Nissan
Motor Co., 986 F.2d
263, 268 (8th Cir.
1993).
“irreparable injury
to plaintiffs‟ claims”
Monsanto Co. v.
Woods, 250 F.R.D.
411, 414 (E.D. Mo.
2008).
“destruction was
not „willful‟ or
malicious,‟” but
plaintiffs‟ counsel
should have known
to preserve the
evidence; jury was
instructed that “an
adverse inference
may be drawn from
plaintiffs‟ failure to
preserve the
vehicle”
Bass v. Gen.
Motors Corp., 929
F. Supp. 1287,
1290 (W.D. Mo.
1996), aff‟d on this
ground, 150 F.3d
842, 851 (8th Cir.
1998).
Spoliation Sanctions by Circuit | Page 8
9. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Ninth Circuit Duty to preserve
potentially relevant
evidence in party‟s
possession
Leon v. IDX
Systems Corp.,
2004 WL 5571412,
at *3 (W.D. Wash.
2004), aff‟d 464
F.3d 951 (9th Cir.
2006).
Duty extends to key
players.
Hous. Rights Ctr. v.
Sterling , 2005 WL
3320739, at *3
(C.D. Cal. Mar. 2,
2005).
In Hous. Rights,
Ctr. v. Sterling,
2005 WL 3320739,
at *3 (C.D. Cal.
Mar. 2, 2005), the
court quoted
Zubulake IV, 220
F.R.D. at 220
(“Once the duty to
preserve attaches,
any destruction of
documents is, at a
minimum,
negligent.”), and
found that
defendants‟
“[d]estruction of
documents during
ongoing litigation
was, at a minimum,
negligent.”
Bad faith not
required
Dae Kon Kwon v.
Costco Wholesale
Corp., No. CIV. 08-
360 JMSBMK, 2010
WL 571941, at *2
(D. Hawai„i 2010);
Carl Zeiss Vision
Intern. GmbH v.
Signet Armorlite,
Inc., No. 07CV0894
MS(POR), 2010 WL
743792, at *15
(S.D. Cal. Mar. 1,
2010), amended on
other grounds,
2010 WL 1626071
(S.D. Cal. Apr 21,
2010).
Willfulness, bad
faith, or fault
Dae Kon Kwon v.
Costco Wholesale
Corp., No. CIV. 08-
360 JMSBMK, 2010
WL 571941, at *2
(D. Hawai„i 2010)
(requiring that party
“engaged
deliberately in
deceptive
practices”)
“„[D]isobedient
conduct not shown
to be outside the
control of the
litigant‟ is all that is
required to
demonstrate
willfulness, bad
faith, or fault.”
Henry v. Gill Indus.,
983 F.2d 943, 948
(9th Cir. 1993).
Bad faith or gross
negligence
Karnazes v. County
of San Mateo, No.
09-0767 MMC
(MEJ), 2010 WL
2672003, at *2
(N.D. Cal. July 2,
2010).
Bad faith not
required
Otsuka v. Polo
Ralph Lauren Corp.,
No. C 07-02780 SI,
2010 WL 366653,
at *3 (N.D. Cal.
Jan. 25, 2010)
This issue has not
been addressed
When spoliation
substantially denies
a party the ability to
support or defend
the claim
Henry v. Gill Indus.,
983 F.2d 943, 948
(9th Cir. 1993).
The Court‟s
research has not
located case in
which the court
granted an adverse
inference instruction
and stated what the
instruction would
be.
Spoliation Sanctions by Circuit | Page 9
10. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Tenth Circuit Duty extends to key
players
Pinstripe, Inc. v.
Manpower, Inc.,
No. 07-CV-620-
GKFPJC, 2009 WL
2252131, at *1
(N.D. Okla. July 29,
2009).
A party with
possession of
potentially relevant
evidence has a duty
to preserve it; even
if the party
relinquishes
ownership or
custody, it must
contact the new
custodian to
preserve the
evidence.
Jordan F. Miller
Corp. v. Mid-
Continent Aircraft
Serv., 139 F.3d
912,
1998 WL 68879, at
*5-6 (10th Cir.
1998).
No.
Procter & Gamble
Co. v. Haugen, 427
F.3d 727, 739 n.8
(10th Cir. 2005)
(stating that district
court must consider
Rule
26(b)(2)[(C)](iii),
which requires the
court to limit
discovery if “the
burden or expense
of the proposed
discovery outweighs
its likely benefit”).
Bad faith not
required
Hatfield v. WalMart
Stores, Inc., 335
Fed. App‟x 796, 804
(10th Cir. 2009).
Negligence
Pipes v. UPS, Inc.,
No. CIV.A.07-1762,
2009 WL 2214990,
at *1 (W.D. La. July
22, 2009).
“willfulness, bad
faith, or [some]
fault”
Procter & Gamble
Co. v. Haugen, 427
F.3d 727, 738 (10th
Cir. 2005) (using
language originally
in Societe
Internationale v.
Rogers, 357 U.S.
197, 212 (1958),
which distinguished
“fault” from a
party‟s inability to
act otherwise).
Bad faith
Turner v. Pub. Serv.
Co. of Colo., 563
F.3d 1136, 1149
(10th Cir. 2009).
Neither bad faith
nor intentionality
required
Hatfield v. Wal-Mart
Stores, Inc., 335
Fed. App‟x 796,
804 (10th Cir.
2009); Schrieber v.
Fed. Ex. Corp., No.
09-CV-128-JHP-PJC,
2010 WL 1078463
(N.D. Okla. March
18, 2010).
Although this
specific issue has
not been addressed,
the court declined
to “create a
presumption in
favor of spoliation
whenever a moving
party can prove that
records that might
have contained
relevant evidence
have been
destroyed”
Crandall v. City &
County of Denver,
Colo., No. 05-CV-
00242-MSK-MEH,
2006 WL 2683754,
at *2 (D. Colo.
Sept. 19, 2006).
Spoliation that
impairs a party‟s
ability to support a
claim or defense.
Pinstripe, Inc. v.
Manpower, Inc.,
No. 07-CV-620-GKF-
PJC, 2009 WL
2252131, at *2
(N.D. Okla. July 29,
2009).
Bad faith; adverse
inference instruction
Smith v. Slifer
Smith &
Frampton/Vail
Assocs. Real Estate,
LLC, No. CIVA
06CV02206-JLK,
2009 WL 482603,
at *13 (D. Colo.
Feb. 25, 2009).
Spoliation Sanctions by Circuit | Page 10
11. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
Eleventh
Circuit
Duty to preserve
potentially relevant
evidence that party
has “access to and
control over”
Nat‟l Grange Mut.
Ins. Co. v. Hearth &
Home, Inc., No.
CIV.A.
2:06CV54WCO,
2006 WL 5157694
at * 5 (N.D. Ga.
Dec. 19, 2006).
Courts in the
Eleventh Circuit
have not found
conduct culpable
without analyzing
the facts, although
reasonableness is
not discussed.
Bad faith
Managed Care
Solutions, Inc. v.
Essent Healthcare,
Inc., No. 09-60351-
CIV, 2010 WL
3368654, at *4
(S.D. Fla. Aug. 23,
2010).
Degree of
culpability is
weighed against
prejudice caused by
spoliation
Flury v. Daimler
Chrysler Corp., 427
F.3d 939, 945 (11th
Cir. 2005); Brown
v. Chertoff, 563 F.
Supp. 2d 1372,
1381 (S.D. Ga.
2008).
Bad faith
Managed Care
Solutions, Inc. v.
Essent Healthcare,
Inc., No. 09-60351-
CIV, 2010 WL
3368654, at *12
(S.D. Fla. Aug. 23,
2010).
Bad faith
Penalty Kick Mgmt.
Ltd. v. Coca Cola
Co., 318 F.3d
1284, 1294 (11th
Cir. 2003);
Managed Care
Solutions, Inc. v.
Essent Healthcare,
Inc., No. 09-60351-
CIV, 2010 WL
3368654, at *13
(S.D. Fla. Aug. 23,
2010).
This issue has not
been addressed.
Spoliation of
evidence that was
not just relevant
but “crucial” to a
claim or defense
Managed Care
Solutions, Inc. v.
Essent Healthcare,
Inc., No. 09-60351-
CIV, 2010 WL
3368654, at *8
(S.D. Fla. Aug. 23,
2010).
Negligence; jury to
be instructed that
the destruction
raises a rebuttable
inference that the
evidence supported
plaintiff‟s claim
Brown v. Chertoff,
563 F. Supp. 2d
1372, 1381 (S.D.
Ga. 2008) (but
other courts in
Eleventh Circuit will
not order any
sanctions without
bad faith)
Spoliation Sanctions by Circuit | Page 11
12. Circuit
Scope of Duty to
Preserve
Can conduct be
culpable per se
without
consideration of
reasonableness?
Culpability and prejudice requirements
What constitutes
prejudice
Culpability and
corresponding
jury instructions
for sanctions
in general
for dispositive
sanctions
for adverse
inference
instruction
for a rebuttable
presumption of
relevance
D.C. Circuit Duty to preserve
potentially relevant
evidence “within the
ability of the
defendant to
produce it”
Friends for All
Children v.
Lockheed Aircraft
Corp., 587 F. Supp.
180, 189 (D.D.C.),
modified, 593 F.
Supp. 388,
(D.D.C.), aff‟d, 746
F.2d 816 (D.C. Cir.
1984).
Courts in the D.C.
Circuit have not
found conduct
culpable without
analyzing the facts,
although
reasonableness is
not discussed.
Case law addresses
specific sanctions,
rather than
sanctions generally.
Bad faith
Shepherd v. Am.
Broad Cos., 62 F.3d
1469, 1477 (D.C.
Cir. 1995);
D‟Onofrio v. SFX
Sports Group, Inc.,
No. 06-687
(JDB/JMF), 2010
WL 3324964, at *5
(D.D.C. Aug. 24,
2010).
Negligent or
deliberate
Mazloum v. D.C.
Metro. Police Dep‟t,
530 F. Supp. 2d
282, 292 (D.D.C.
2008); More v.
Snow, 480 F. Supp.
2d 257, 274-75
(D.D.C. 2007);
D‟Onofrio v. SFX
Sports Group, Inc .,
No. 06-687
(JDB/JMF), 2010
WL 3324964, at
*10 (D.D.C. Aug.
24, 2010) (not for
mere
negligence unless
“the interests in
righting the
evidentiary balance
and in the deterring
of others trumps
the lacuna that a
logician would
detect in the logic
of giving such an
instruction”).
This issue has not
been addressed.
Case law states that
the spoliated
evidence must have
been relevant, i.e.,
information that
would have
supported a claim
or defense, but it
does not address
prejudice.
“[A]ny adverse
inference instruction
grounded in
negligence would
be considerably
weaker in both
language and
probative force than
an instruction
regarding deliberate
destruction.”
Mazloum v. D.C.
Metro. Police Dep‟t,
530 F. Supp. 2d
282, 293 (D.D.C.
2008).
Federal “In reviewing sanction orders, [the Federal Circuit] applies the law of the regional circuit from which the case arose.” Monsanto Co. v. Ralph, 382 F.3d 1374, 1380 (Fed. Cir. 2004). In
Consolidated Edison Co. of N.Y., Inc. v. United States, 90 Fed. Cl. 228, 255 n.20 (Fed. Cl. 2009), the United States Court of Federal Claims observed that “the United States Court of Appeals
for the Federal Circuit, has not definitively addressed whether a finding of bad faith is required before a court can find spoliation or impose an adverse inference or other sanction. Because
many of the spoliation cases decided to date by the Federal Circuit have been patent cases in which the Federal Circuit applies the law of the relevant regional circuit, the Federal Circuit has
not had the opportunity to announce a position binding on this court as to a possible „bad faith‟ or other standard to trigger a spoliation of evidence sanction. Consequently, judges of the
United States Court of Federal Claims have taken differing positions on the “bad faith” requirement. Compare [United Med. Supply Co. v. United States, 77 Fed Cl. 257, 268 (2007)] („[A]n
injured party need not demonstrate bad faith in order for the court to impose, under its inherent authority, spoliation sanctions.‟), with Columbia First Bank, FSB v. United States, 54 Fed. Cl.
693, 703 (2002) (noting findings of bad faith are required before the court can determine that there was spoliation).” (Citation omitted.)
Spoliation Sanctions by Circuit | Page 12