Litigation Hold: Scope

Scope of a legal hold.

March 6, 2024

Ninth Circuit – – Don’t Destroy Relevant Texts

Dismissal of plaintiff’s claims under Fed.R.Civ.P. 37(e)(2) was affirmed in Jones v. Riot Hosp. Grp. LLC, __ F. 4th__, 2024 WL 927669 (9th Cir. Mar. 5, 2024).  The case is a textbook example of a plaintiff tanking her own case by deleting relevant texts. Ms. Jones, a former waitress, sued a bar […]
January 2, 2024

“ESI Protocol” v. “Discovery Plan”

“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs.  They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f).  After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI […]
December 6, 2023

Sedona Conference’s 2023 Case Law Bibliography by Phil Favro

As we approach the end of the year, it is an appropriate time to review Philip J. Favro, ed., Selected eDiscovery and ESI Case Law from 2023  (The Sedona Conf. 2023). Phil’s publication is an annual event.  Book Review:  Phil Favro’s “Selected eDiscovery and ESI Case Law from 2022-23″;  Sedona Conference “Selected […]
October 27, 2023

Possession, Custody, or Control – Part II

Joan Kim has written an excellent summary in Legal Separateness: The Boundaries on Written Discovery | Proskauer – Minding Your Business – JDSupra (Oct. 23, 2023). Her blog  accurately states: The concept of corporate legal separateness has long been a fortress protecting affiliated business entities such as parents, subsidiaries, and sister companies […]
July 16, 2023

Bare Allegation of Refusal to Preserve Evidence Does Not State a Claim

In Van Croft v. Louis, 2023 WL 4421571 (D. Md. July 10, 2023)(Xinis, J.), the Court rejected a poorly-asserted, pro se spoliation claim. The plaintiff sued “her former paramour,” his wife, and a restaurant for injuries when the man allegedly assaulted her in a restaurant.  The claims against the restaurant were that […]
July 15, 2023

Sanctions Sought in “Murky Mess”

Zoe Tillman reported that Georgia Poll Workers Seek Sanctions Against Giuliani in Suit (1) (bloomberglaw.com)(July 12, 2023).  This high-profile case may present interesting ESI and spoliation issues and it is worth watching. Ms. Tillman reports that plaintiffs are seeking a default judgment.  Plaintiffs’ attorneys wrote: “Giuliani is an attorney with over half […]
May 7, 2023

ESI 101:  Don’t Spoliate Evidence That’s Been Photographed

The key takeaway from G.H. Le Doux v. Western Express, Inc., 2023 WL 2842777 (W.D. Va. Apr. 7, 2023), is don’t spoliate evidence when your opponent has a photograph of it. While the Le Doux defendant “succeeded in destroying a considerable amount of ESI,” in the words of The Hon. Paul W. […]
April 28, 2023

Book Review:  Any Ship Can Be a Minesweeper – – –  Once

When it comes to electronically stored information, Tom O’Connor is a national treasure.  He has a wealth of litigation-related ESI experience, helped run the prestigious Georgetown E-Discovery Academy, lectures on recent cases and developments in the law, has published several books and blogs, and is a consultant.  He has generously shared his […]
April 17, 2023

Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)

Government Employees Health Assoc. v. Actelion Pharmaceuticals, Ltd., __ F.R.D. ___, 2023 WL 316578 (D. Md. Jan. 19, 2023)(Coulson, J.), provides a textbook application of Fed.R.Civ.P. 37(e) in an antitrust lawsuit with a complex fact pattern. The Court rejected Rule 37(e)(2) sanctions and engaged in a sophisticated analysis to fashion Rule 37(e)(1) […]
February 22, 2023

Procedural Failures in Request to Preserve Video Evidence

In Nolan v. Secretary of Dept. of Public Safety and Correctional Services, No. 1181 (Appellate Court of Md. Feb. 8, 2023)(unreported),[1] Nolan appealed from denial of a “Motion for Injunction” to preserve certain video evidence. The circuit court denied the motion because it had dismissed the case three months earlier. The Appellate […]
December 26, 2022

Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction?

In Little v. Pohanka, 2022 WL 17412861 (Appellate Ct. of Md. Dec. 5, 2022), Mr. Little sued Mr. Pohanka for negligent driving.  The jury found that Mr. Pohanka was negligent; however, in Maryland, contributory negligence is a complete defense, and the jury determined that Mr. Little was contributorily negligent.  As a result, […]
December 15, 2022

Md. State Bar Association Social Media Program

It was a pleasure to participate yesterday in an MSBA program on “Social Media as Evidence” for the Young Lawyers Section.  After an introduction by T.J. Keilty, I provided an overview of what constitutes social media.  The Hon. J. Mark Coulson discussed discovery issues, including His Honor’s decisions in Allen v. PPE Casino […]
November 20, 2022

ABA Article Suggests a Need to “Preserve Everything”

A recent article in the American Bar Association’s Litigation magazine suggested that: Plaintiffs must ensure preservation of everything from the moment the problem is identified….  Even if the plaintiff hasn’t filed a lawsuit yet, consider a written instruction to the soon-to-be defendant to preserve everything…. The best way for the plaintiff to […]
November 19, 2022

Md. State Bar Association Program on Social Media

I will be co-presenting a program for the MSBA Young Lawyers Section, together with the Hon. J. Mark Coulson, Alicia L. Shelton, Esq., Thomas J. Keilty, III, Esq., and Ashley Aranega of X1 Social Discovery.  Please see the flier below:
September 8, 2022

Missing Text Messages Shown By Third-Party Production & Responsive Texts

An article by Jef Feeley, Judge Slams Musk for Mishandling Records in Twitter Fight (1) (bloomberglaw.com) (Sept. 7, 2022), states that Delaware Chancery Judge Kathaleen St. Jude McCormick found “glaring deficiencies” in Elon Musk’s production of text messages in discovery. The article states: “Third parties produced text messages with Musk that Musk himself did […]
August 15, 2022

Is There a Duty to “’Fess Up?”

Several Fourth Circuit, District of Maryland, and Maryland intermediate appellate decisions stand for the proposition that, where a potential litigant is unable to comply with the duty to preserve potentially responsive information, the potential litigant has a duty to notify the anticipated opponent before the information goes missing. For example: I have […]
August 12, 2022

“Modern Attachments” or “Pointers”- What is a Document? (Part IV)

  I have written a series of blogs on What is a Document? (Part III),  What is a Document? (Part II), and What is a “Document?” In those blogs, I pointed to issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, PDF Portfolios, and […]
August 9, 2022

“Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History”

An interesting post by Phillip Favro, The Hon. Helen Adams, and Leslie Behaunek, Navigating Social Media Discovery: Steps Counsel Can Take to Address Mass Deletion of Social Media History – Innovative Driven (id-edd.com) (June 1, 2022), describes tools provided by Instagram and Facebook that users may employ to delete material posted to […]
June 21, 2022

Perils of a Vague Preservation Letter

Nolan v. O.C. Seacrets, Inc., 2021 WL 4806337 (D. Md. Oct. 14, 2021), reemphasizes that a preservation letter needs to be well-drafted and provide details sufficient to put the recipient on notice of the factual nature of the claim.  In Nolan, because plaintiff’s preservation demand was purportedly too vague, it may have […]
June 4, 2022

Historical ESI Highlights – Part XII – Texas v. Frisco and the “Free for All Zone” – A Preemptive Strikeout

The duty to preserve potentially responsive information generally arises before litigation begins.[1] However, the Federal Rules of Civil Procedure don’t apply at that time. The Honorable Paul W. Grimm, M. Berman, et. al., “Proportionality in the Post-Hoc Analysis of Pre-Litigation Preservation Decisions,” 37 U. Balt. L. Rev. 381, 397 (2008). When it […]
May 25, 2022

Historical ESI Highlights – Part II – Zubulake

In Part I of this series, I quoted Judge Facciola’s observation that The Hon. Shira A. Scheindlin’s 1999 law review article sparked a revolution.  However, Judge Scheindlin’s subsequent Zubulake decisions were also pivotal.  Everyone practicing law at that time heard of them. Zubulake was a series of cases.  Zubulake v. UBS Warburg, […]
May 18, 2022

“The Checklist Manifesto” and the Fed.R.Civ.P. 26(f) Conference

“The Checklist Manifesto: How to Get Things Right,” by Atul Gawande, M.D.,[1] is a fascinating analysis of the history and uses of checklists. In a nutshell, the thesis is that there are many areas where we have sufficient knowledge to solve problems; however, we fail to apply it correctly.  “Getting the steps […]
April 3, 2022

Maryland v. Federal Rules on the Scope of Discovery and Proportionality

In several recent blogs, I have highlighted many of the differences between the Federal Rules of Civil Procedure and the Maryland Rules.  Those blogs are listed in Maryland v. Federal Rule Regarding a Mandatory Conference of the Parties. The Maryland Rules regarding the scope of discovery and proportionality limits contain significant differences […]
March 29, 2022

A Focused Preservation Letter

I recently wrote about The Perils of a Misfocused Preservation Letter, discussing Malone v. Wicomico County, MD, 2021 WL 1312900 (D. Md. Apr. 8, 2021), and Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands. Phil Favro’s excellent blog Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021 – Innovative […]
March 17, 2022

Sedona Conference Issues Commentary on Equitable Remedies in Trade Secret Litigation

Earlier this month, the Sedona Conference published its “Commentary on Equitable Remedies in Trade Secret Litigation” (Mar. 2022). The comprehensive Sedona Commentary offers five Principles and 24 Guidelines. Its premise is that: “Obtaining or resisting some form of equitable relief is a key component of many trade secret disputes, both at an […]
March 11, 2022

Secondary Evidence as a “Gap Filler”

In Hale v. Mayor and City Council of Baltimore, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court applied the secondary evidence rule where text messages had been deleted: As discussed throughout, there is a glaring lack of documentary or testimonial evidence corroborating the existence of the text messages that constitute […]
March 11, 2022

No Sanction Despite Convoluted and Murky Explanation for Missing Texts

In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages.  The Court described the missing texts as “the primary basis of [plaintiff’s] […]
March 7, 2022

Requests for a Preservation Order

Preservation orders may be entered by agreement, ex parte, or upon motion after an opportunity for briefing.  Fed.R.Civ.P. 16(b)(3)(B)(iii) and Rule 26(f)(3)(C) authorize preservation orders as part of a discovery plan or scheduling order.  Additionally, “[a] federal court may also issue preservation orders as part of its inherent authority to manage its […]
March 5, 2022

Are Litigation Hold Notices Discoverable?

The debate over discoverability of litigation hold notices continues. I recently wrote on this topic in  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective and When is a Litigation Hold Notice Discoverable? A different approach to hold notices was recently suggested in an ABA article by […]
January 16, 2022

No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case

In Webb v. Giant of Maryland, LLC, __ Md. __, 2021 WL 6016453, at *1 (Dec. 21, 2021), the Court held that it was error to instruct the jury on spoliation on the facts presented.  The store where plaintiff was injured had more than 30 cameras in operation and was notified of […]
November 28, 2021

Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was

Sanctions were imposed in DG BF LLC v. Ray, No. 2020-0459 (Del. Ch. Nov. 19, 2021).[1] The court dismissed a fraud and retaliation lawsuit for discovery abuse.  Among other issues, plaintiff testified that he did not know what a “litigation hold” was, even though defendants sent a preservation demand to him. It […]
November 28, 2021

Sanctions for: Failure to Impose a Litigation Hold; and, for Removing Zoo Animals After Notice of Inspection and Without Cooperative Communications

Collins v. Tri-State Zoological Park of Western MD, Inc., 2021 WL 5416533 (D. Md. Nov. 19, 2021), centers on allegations that defendants maintained a public nuisance by the neglect and ongoing mistreatment of animals residing at defendants’ zoo. On the spoliation issue, “Plaintiffs allege … that Defendants not only failed to issue […]
October 1, 2021

When is a Haircut Spoliation?

In Rainey v. State, No. 3094, __ Md. App. ___ (Sept. 28, 2021), a defendant in a criminal case spoliated evidence when he got a haircut after the crime, but before his arrest.  Mr. Rainey was charged with murder.  An eyewitness and surveillance video showed that a man with dreadlocks was involved. […]
August 28, 2021

What is a Document? (Part II)

In a prior blog, I discussed the evolving and fluid concept of “what is a document?” The following spreadsheet demonstrates one aspect of the issue on simplified facts. Assume that an accountant is being deposed about a spreadsheet that the accountant prepared many years ago, and the issue is the manner in […]
August 18, 2021

Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant

In McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021) (Copperthite, J.), data on Defendant’s former employee’s cell phone was erased after Plaintiffs had sent a preservation letter.[1] Defendant Transdev admitted that it had a duty to preserve the evidence and had control over it when it was […]
August 17, 2021

What is a “Document?”

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”[1]  Usually, it was clear where a letter, memo, or contract began and ended.  But, ESI is much different than paper and recent cases bring that issue to the forefront. In Sandoz v. Un. Therapeutics […]
August 12, 2021

When Does a Litigation Hold End?

Much has been written about what triggers a litigation hold, i.e., reasonable anticipation of litigation.[1] Less has been written about when a litigation hold ends.  That became a potential problem for the defendant in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114 (N.D. Cal. Mar. 16, 2021). The question of when a […]
August 11, 2021

Snapchat Spoliation Blog: More on the Dangers of Unsupervised Self Collection

Thanks to Phil Favro of Driven, Inc., for his excellent post “Snapchat Spoliation Case Highlights the Importance of eDiscovery Competence” (Driven, Inc., Jul. 20, 2021). Phil’s blog discusses the importance of understanding the features of various messaging programs.  I have recently blogged about a District of Maryland decision that conditionally approves of […]
August 11, 2021

There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions

In Snyder v. Moag & Co., LLC, 2021 WL 3190493 (D. Md. Jul. 28, 2021) (Copperthite, J.), the Court wrote that, “the matter is quite simple – has Petitioner met the elements of spoliation.”  The Court answered that in the negative.  In doing so, it differentiated between the loss or destruction of […]
August 10, 2021

District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data

Many social media programs provide their members with a non-forensic download tool.  For example, Google Takeout, Uber, Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019). However, those tools may not provide the same information that a forensic download collects. In Allen v. PPE […]
August 9, 2021

When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective.

Much has been written about discoverability of litigation hold notices.  See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities). In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote:  “This matter is back before the undersigned on […]
August 3, 2021

Maker’s Mark: A Different View of Self Collection

In Maker’s Mark Distiller, Inc. v. Spalding Grp., Inc., 2021 WL 2018880 (W.D. Ky. Apr. 20, 2021), the court addressed self-collection. I have previously written on self-collection in “Unsupervised Self-Collection Predictably Led to Problems,” and in “Self-Identification and Self-Preservation: A Fool for a Client?,” I cited to R. Losey, “Another “Fox Guarding […]
July 23, 2021

Plaintiff Sanctioned for Spoliation of Automobile Engines Due to Inadequate Implementation of Litigation Hold

In Hyundai Motor Amer. Corp. v. N. American Automotive Svcs., Inc., et al., 2021 WL 3111191 (S.D. Fl. Jul. 22, 2021), sanctions were imposed against the plaintiff, Hyundai Motor America Corp. (“HMA”). At bottom, HMA failed to follow basic, well-established procedures to implement a litigation hold, and crucial evidence then went missing.  […]
July 22, 2021

The Perils of a Misfocused Preservation Letter

In a preservation letter, a potential litigant demands that the opponent preserve specific ESI and documents.  The purpose of the letter is to trigger the common-law duty to preserve potentially responsive information.  However, if not properly drafted, a preservation letter can have the opposite effect.  Malone v. Wicomico County, MD, 2021 WL […]
February 12, 2021

“[I]t is no longer amateur hour.”

In a February 11, 2021, post,   Court Enforces Strict Sanctions For Failing To Be Competent In ESI Obligations | Farrell Fritz, P.C. – JDSupra , the author describes the sanctions decision in In DR Distributors, LLC v. 21 Century Smoking, Inc., a trademark dispute over electronic cigarettes, stating: As noted by Judge Johnson, “[i]t […]
February 7, 2021

District of Maryland’s Recent Application of Spoliation Doctrine in Discrimination Case

In Membreno v. Atlanta Restaurant Partners, LLC, 2021 WL 351174 (D. Md. Feb. 2, 2021), the Court applied the spoliation doctrine in an employment discrimination case. The plaintiff alleged injury due to a hostile work environment and discrimination based on gender identity and sex.  The Court wrote: “Discovery was contentious….”  The plaintiff […]
January 29, 2021

Some Tactical Options for Businesses Faced With Pre-Litigation Preservation Demands

After litigation starts, a business faced with unreasonable preservation or discovery demands can resort to the court’s procedural rules to request relief from a judge.  However, the duty to preserve potentially responsive information often arises in a “free for all” zone before litigation is commenced.  In that situation, there is no umpire […]
January 9, 2021

Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence

An unreported decision of the intermediate appellate court provides an interesting contrast to Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), which is discussed in a prior blog. In Benson v. ALDI, Inc., 2019 WL 5704532 (Md. Ct. Spl. Apls. Nov. 5, 2019), summary judgment was affirmed […]
January 8, 2021

Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence

“I just delete. I delete – delete. Anything there that I don’t want, don’t need anymore, I delete.” Peterson v. Evapco, Inc., 238 Md. App. 1, 21 (2018).  That is an invitation to disaster.  Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), involved spoliation in the context […]
January 3, 2021

Is Cremation, Burial, or Suicide Spoliation?

While this blog is focused on ESI, Maryland State courts have been asked to apply the spoliation doctrine in unique contexts.  They have addressed whether: Cremation is spoliation, Adventist Healthcare v. Mattingly, 244 Md.App. 259 (2020); Jarrett v. State, 220 Md. App. 571 (2014); Burial is spoliation, Hollingsworth & Vose Co. v. […]
December 27, 2020

Triggering the Duty to Preserve ESI

Two recent decisions of the District of Maryland demonstrate when the duty to preserve is triggered in the context of spoliation motions.  Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020) (“MVM“); Eller v. Prince George’s Co. Public Schools, et al., 2020 WL 7336730 (D. Md. […]
December 11, 2020

The “Practical Ability” Standard for “Control” in Maryland

In Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020), the Court again followed a “practical ability” plus notification standard for determining when ESI is within a party’s possession, custody, or control, and what should be done if it is not.  Maryland State courts appear to […]
December 1, 2020

When is a Litigation Hold Notice Discoverable?

A recent ABA practice point described Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 2020 NY Slip Op 20133, ¶ 2, 69 Misc. 3d 209, 126 N.Y.S.3d 873, 875 (Sup. Ct.) (decided June 9, 2020) (Masler, J.). In Radiation Oncology, the court addressed when a litigation hold […]
November 28, 2020

The Duty to Preserve Continues Even After Production of Social Media

In Faulkner v. Aero Fulfillment Services, 2020 WL 3048177 (S.D.Oh. June 8, 2020), the court held that deactivation of a LinkedIn site after it had been downloaded and produced breached the duty to preserve that ESI.  However, the sanction was limited to an admonishment due to the absence of prejudice. The problem […]
May 12, 2020

Publication of M. Berman, et al., eds., ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020)

I am pleased to announce the publication by the Maryland State Bar Association of M. Berman, et al., eds.,  ELECTRONICALLY STORED INFORMATION IN THE MARYLAND COURTS (2020). This book is intended as a practitioner’s handbook addressing primarily – but not exclusively – how ESI is addressed in Maryland State courts, comparing and […]
July 25, 2015

The Duty to Preserve & the Spoliation Doctrine in the Maryland State Courts

My article, “The Duty to Preserve ESI (Its Trigger, Scope, and Limit) & the Spoliation Doctrine in Maryland State Courts” was recently published in the University of Baltimore Law Forum, Vol. 45 (2015).  The article discusses Maryland case law addressing the issue, suggests a modern analytical framework, and concludes with a cautionary […]
August 18, 2012

Book Review: “Zubulake’s e-Discovery: The Untold Story of My Search for Justice,” by Ms. Laura A. Zubulake

Ms. Laura A. Zubulake has published an account of her experiences as the plaintiff in the groundbreaking “Zubulake case.”  The book is entitled Zubulake’s e-Discovery: The Untold Story of My Quest for Justice. According to Shepard’s, the first decision in that string of decisions, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 […]
July 30, 2011

American Bar Assoc., Publishes Berman, et al., Managing E-Discovery and ESI

The American Bar Association has  published M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial.  The 761-page work features chapters by The Hon. Paul W. Grimm (D.Md.), The Hon. John M. Facciola (D.D.C.),  The Hon. James C. Francis IV (S.D.N.Y.), and The Hon. Joseph F. […]