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    Pursuit of a “Smoking Gun” May Be a Recipe for Disaster

    In the U.S District Court for the Northern District of Illinois, Judge Matthew F. Kennelly recently held that plaintiffs alleging price-fixing in the text messaging market were not entitled to an adverse inference after failing to prove that defendants T-Mobile and CTIA destroyed emails in bad faith.  Judge Kennelly also granted the defendants’ motion for […]

    The Moratorium Continues…

    The environmental review of proposed regulations that, if adopted, would permit high-volume hydraulic fracturing gas drilling (“fracking”) in New York State, has been slow.  New York State Department of Environmental Conservation (“DEC”) issued a Draft Supplemental Generic Environmental Impact Statement (“Draft SGEIS”) evaluating the potential adverse environmental effects of fracking in September 2009.  That Draft […]

    What is the Difference between an Adverse Sanction and an Adverse Instruction?

    In the world of discovery, including e-discovery, the production of evidence at trial is necessary to prove or defend a case. But what happens when that evidence is unavailable or goes missing? The Second Circuit addressed one of the possibilities to this issue in Mali v. Fed. Ins. Co, No. 11-5413, 2013 WL 2631369 (2d […]

    NY Courts Adopt Federal E-Discovery Cost Allocation Standard

    U.S. Bank Nat. Ass’n, et al. v. GreenPoint Mortgage Funding, Inc., 94 A.D.3d 58 (1st Dept. 2012) On February 28, 2012, Justice Acosta of the First Department, Appellate Division, adopted the federal Zubulake standard to determine which party is responsible for the cost of searching for, retrieving, and producing electronically stored information (ESI). In U.S. […]

    Court Rules Against Imposing Sanction of Dismissal Because Plaintiff’s Conduct Did Not Rise to the Level of a Willful Violation

    Fid. Nat’l Title Ins. Co. v. Captiva Lake Invs., LLC, 2012 U.S. Dist. LEXIS 163801, 1-2 (E.D. Mo. Nov. 16, 2012) A United States District Court in the Eastern District of Missouri recently denied a Defendant’s motion seeking to impose a sanction of dismissal against the Plaintiff because the Plaintiff’s conduct did not “rise[] to […]

    NY Appellate Court Holds Trial Court Erred In Forcing Defendant To Turn Over iPhone

     AllianceBernstein L.P. v Atha, 2012 N.Y. App. Div. LEXIS 7693 (N.Y. App. Div. 1st Dep’t Nov. 15, 2012). On November 15, 2012, the New York Appellate Court for the First Department held in AllianceBernstein L.P. v. Atha that production of an iPhone was beyond the scope of the discovery request. The Plaintiff, an investment firm, […]

    N.Y. District Judge Sanctions City for Spoliation of E-mails

    DMAC LLC, et al., v. City of Peekskil, et al., 2012 U.S. Dist. LEXIS 138605 (S.D.N.Y. Sept. 17, 2012).  On September 17, 2010, Magistrate Judge Yanthis of the Southern District of New York sanctioned the City for spoliation of electronically stored information (“ESI”) after it negligently destroyed e-mails related to the case. In DMAC LLC […]

    Court Shifts Costs of Discovery to Plaintiffs Prior to Class Certification

    Boeynaems v. LA Fitness Int’l, LLC, Nos. 10-2326, 11-2644, 2012 WL 3536306 (E.D.Pa. Aug. 16, 2012). In a case of first impression for the U.S. District Court in the Eastern District of Pennsylvania, federal Judge Baylson shifted the costs of e-discovery to the Plaintiffs before deciding whether to grant a class certification. In Boeynaems, the […]

    Are Litigation Hold Letters Discoverable?

    Tracy v. NVR, Inc., 2012 U.S. Dist. LEXIS 44350 (W.D.N.Y. Mar. 26, 2012) To answer that question briefly: typically, no litigation hold letters are not discoverable. However, there is catch, which the Western District of New York (“WDNY”) has recently adopted. On March 26, 2012, the WDNY adopted the Major Tours, Inc.[1]principle that litigation hold […]

    Fracking Blamed as Cause of Ohio’s Recent String of Earthquakes

    An earthquake with a 4.0 magnitude shook eastern Ohio, outside of Youngstown, on Saturday afternoon, December 31, 2011.  The latest earthquake was the 11th earthquake in Ohiosince March 2011.[1]  This earthquake, like the others, have been centered around an injection well that has been used for the disposal of millions of gallons of brine and […]