Litigation Hold: Trigger

What triggers a legal hold?

December 29, 2023

My Top Blogs From 2023

I posted 104 items this year.  Several that may be worth re-reading are: How to Read a Load File More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” Possession, Custody, or Control – Part II Don’t Be Too Nice When You Send a Preservation Notice Relevance Redactions Revisited […]
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 […]
July 31, 2023

Don’t Be Too Nice When You Send a Preservation Notice

I always advocate for civility and cooperation in e-discovery.[1]  But, it may be prudent to expressly threaten a lawsuit in a preservation notice.  It may also be cautious to avoid offering to settle a claim in that notice.  If you want to make an offer to settle, a separate demand or settlement […]
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 4, 2023

Duty to Preserve Triggered in Administrative Appeal of Employment Decision

In Jennings v. Frostburg State University, 2023 WL 4205665 (D. Md. June 27, 2033), defendants wiped two cell phones of departing employees after the duty to preserve was triggered.  The Court’s duty to preserve analysis – holding that an administrative rebuttal letter triggered the duty to preserve – is important to all […]
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 23, 2023

A Wolf in Sheep’s Clothing:  Litigant Can’t Convert a Discovery Dispute Into a Sanctions Motion

Litigants cannot use a spoliation motion to bring an untimely discovery dispute to the court.  Rains v. Westminster College, 2023 WL 2894506, at *4 n. 44, passim (D. Ut. Apr. 11, 2023). While Rains presented several examples of disguising an untimely motion to compel as a sanctions motion, the “background check” dispute […]
April 6, 2023

Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar

Nicassio v. XYZ Law Firm, 2023 WL 2661156 (Apls. Ct. Md. Mar. 28, 2023)(unreported), demonstrates the wisdom of candor when it comes to potential spoliation.[1] It also reinforces the well-established need to periodically remind custodians of their duty to preserve potentially responsive information. Litigation often drags on long after issuance of an […]
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, […]
August 5, 2022

Phones of top Pentagon officials were wiped of Jan. 6 messages

The Washington Post reports that: “The Pentagon erased a potential trove of material related to the Jan. 6, 2021, attack on the Capitol from the phones of senior defense officials in the Trump administration, according to legal filings.”  Karoun Demirjian and Jacqueline Alemany, Phones of top Pentagon officials wiped of Jan. 6 […]
July 15, 2022

Secret Service erased texts from Jan. 5 and 6, 2021, official says

In Maria Sacchetti and Carol D. Leonnig, Secret Service erased texts from January 5 and 6, 2021, official says – The Washington Post (July 14, 2022), the Washington Post reports that Joseph V. Cuffari, head of the Department of Homeland Security’s Office of Inspector General, “accused the U.S. Secret Service of erasing texts from […]
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 20, 2022

Sanctions for Discovery Misconduct

The ABA reports that a Judge criticizes ‘nasty litigation tactics’ while sanctioning BigLaw firm (abajournal.com)[1]  Sanctions were based on statements the court deemed to be untrue and deposition conduct the court deemed to be unprofessional and rude.[2] The court wrote: After considering all the evidence and arguments, I find that Stryker failed […]
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 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] […]
February 4, 2022

Preservation Demand May Have Done More Than Trigger Duty to Preserve

The Washington Post recently reported on the departure of Jeff Zucker as president of CNN.  J. Barr, “After Jeff Zucker’s ouster, CNN staffers raise questions about a Chris Cuomo connection” (Wash. Post Feb. 3, 2022).  The article asks: “Jeff Zucker’s surprise ouster Wednesday left CNN with a leadership void and an irresistible […]
August 19, 2021

Does Maryland Require that Spoliation be “Intentional”?

In Six Flags America, L.P. v. Mims, 2021 WL 1627055 (Md. Ct. Spl. Apls. Apr. 27, 2021) (unreported), the appellate court held that it was error to allow plaintiff/appellee’s rebuttal arguments concerning the overwriting of defendant’s surveillance footage of the park entrance taken at the time of the occurrence.  The Court pointed […]
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 […]
July 21, 2021

Burden of Proof: Sanctions for Intentional Deletion of Text Messages

In a prior blog, “Burden of Proof of Spoliation,” I noted District of Maryland authority holding that: “Absent guidance from the Fourth Circuit, ‘the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference […]
March 24, 2021

Using Digital Forensics to Protect Trade Secrets

Misappropriation of trade secrets cases are increasingly digital. For example, a former employer may seek discovery of a new employer’s information.  As discussed in “The Gang That Couldn’t Spoliate Straight,” forensic analysis is often necessary.  Craig Ball’s post, “What’s in a Name (or Hash Value)?” discussed some forensic options. A recent American […]
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 […]
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 17, 2021

Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered

It may be prudent to document the analysis of the point at which a potential litigant believes that its duty to impose a legal hold, or “litigation hold,” has or has not been triggered.  While it may not be dispositive, documentation may be useful in the event of a subsequent allegation of […]
January 13, 2021

Application of Maryland’s Evidentiary “Unfriending” Rule to Recent Events?

The Baltimore Sun reports that:  “In Maryland and beyond, those who once bragged about overrunning the Capitol are now deleting their [social media] photos ….” T. Prudente, “As scrutiny intensifies over deadly U.S. Capitol riots, Marylanders delete photos, social media trails,” The Baltimore Sun (Jan. 12, 2021). That alleged action may have […]
January 11, 2021

Maryland’s Spoliation Standard

Maryland courts have addressed spoliation since Love v. Dilley, 64 Md. 238 (1885). In a recent published decision addressing spoliation, Maryland’s intermediate appellate court wrote: Spoliation is a doctrine grounded in fairness and symmetry. The doctrine is premised upon the principle that a party should not be allowed to support its claims […]
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 […]
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. […]
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 […]
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. […]