Experts

Default Judgment Granted, Monetary Sanctions Imposed Against Plaintiff Tech Company and Counsel for Misconduct

Plaintiff’s counsel tried to distance the company and themselves from their retained consultant in an unsuccessful attempt to escape sanctions for multiple instances of misconduct.  Illinois District Court Judge Coleman saw through counsel’s feeble attempts to use the consultant as a scapegoat and granted the defendant’s motion for default judgment and monetary sanctions.

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Photogrammetry for the Win!… If you know what it does.

The Federal Rules of Evidence (“FRE”) are notorious for their complication. Hearsay Rules continue to astound attorneys across the country. Now, in a more modern era, we have the advanced electronics capable of aiding the evidentiary process in many ways. But with a jury of lay people, it is difficult to describe the use of such equipment during a trial without the use of an expert witness.

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Court Goes Nuclear on Deadline Desperados

This case arises out of the nuclear reactor accident that occurred at the Three-Mile Island Power Plant on March 28, 1979.  This 3rd Circuit decision was rendered more than 20 years after the incident and after a complicated procedural history that included multiple filings by thousands of plaintiffs in both state and federal court.  Congressional amendment of a statute finally allowed all of the cases to be consolidated in federal court.  The main issue decided on appeal was the district court’s exclusion of expert testimony, based on the gatekeeping standards of Daubert, which restricted plaintiffs’ ability to show that they were exposed to radiation sufficient to cause injury. The other issue on appeal was the award of sanctions for violations of pre-trial discovery requirements and orders.  As this is an eDiscovery blog, I will be addressing the discovery and sanctions issues rather than the voluminous and complex scientific matters that arose in this nearly 200 page decision.

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Banking on an Adverse Inference – NY Appellate Division Affirms Spoliation Sanctions against Bank in Employment Discrimination Suit

In 2002, bank employee Jacob Ahroner was not happy with his employer, Israel Discount Bank of New York.  Consequently, in July 2003, he brought suit, alleging hostile work environment and discrimination based on race, age, and national origin. In November 2002, seven months prior to filing the action, however, Ahroner’s attorney wrote to the Bank.  The letter informed the Bank that it was “placed on notice that [it] must undertake all efforts to preserve from spoliation all documents and other records relating to our client’s employment, as well as any unlawful conduct of [the Bank] or its employees.  As you may be aware, spoliation gives rise to an inference and instruction that the missing documents would have proved the charging party’s case.”  The Bank replied that it was aware of its obligations.

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I Deleted Your Damning Evidence and There’s Nothing You Can Do About It

Again with the scandalous sex tapes?  Seriously?  With all the publicity surrounding leaked sex tapes coupled with the prevalence and ease of digital communication, one cannot honestly believe such a tape will remain a well kept secret.  You’ll receive no sympathy on this blog for your escapades, and you’ll receive no sympathy in the Ohio court system, either. In Davis v. Spriggs, Spriggs was suing her former husband (Davis) for posting pictures and video on an adult website after the divorce settlement, signed a few months prior, specifically prohibited such distribution.   Spriggs discovered these pictures after logging into a members-only adult website which sent her enough email spam she just had to check it out. Whilst cruising the racy adult website she also discovered pictures of her ex’s new girlfriend.

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Spoil Evidence and Spoil Your Savings

What can be more detrimental than giving your adversary access to your electronic files? The answer: not giving your adversary access to your files. Jacob Ahroner, the plaintiff in Ahroner v. Israel Discount Bank of N.Y., requested and was awarded spoliation sanctions, an adverse inference instruction and reimbursement of fees paid to his expert at trial based upon the destruction of electronic evidence. To successfully request spoliation sanctions involving the destruction of electronic evidence the party requesting the sanctions be imposed must establish three elements.

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The Crimes Are Virtual But The Damages Are Real: The World Gathers In Brazil For The Congress On Electronic Crimes And Protection

Recently, our very own Fernando M. Pinguelo was able to sit down with Brazillian Cyber Law Attorney Opice Blum for a discussion on the Congress on Electronic Crimes and Protection.  Below is a partial transcript of their Question-and-Answer session: Q: Thank you, Renato, for sitting down with me to discuss the latest developments in tech crimes and what experts like you are doing to help businesses and individuals prevent these crimes and address them when they hit home.  Tell me a little bit about your background and the composition of your law practice. A: My name is Renato Opice Blum and I am a Brazilian Attorney and Economist who specializes in High Tech Law. I am CEO of Opice Blum Attorneys at Law, one of the most respected South American firms.  

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You’ve Got a Friend in Vendors … Until They Screw Up

Suppose you’ve got a business.  Not just any business, however, but a state-of-the-art business.  Not necessarily a business that sells state-of-the-art products or services, but a business that you run in a state-of-the-art manner.  Instead of carrying briefcases full of notes, you’ve got compact flash cards full of data.  You don’t even remember the cost of a first-class stamp because all of your correspondence is done by email.  You don’t have boxes and drawers full of hard files around the office because you’ve got everything stored and backed-up on hard drives and servers.  You don’t have a calendar on your desk because you’ve got your daily schedule synched to the Smartphone that never leaves your side.  You use every possible gadget to make sure that you are doing everything in the most technologically advanced and efficient way possible. Now, think to yourself: What happens one day when your company winds up on the wrong end of a lawsuit?  Perhaps even a completely bogus, frivolous lawsuit.  Even if you know that you’ll end up victorious in the end, you might find yourself bogged down in an eDiscovery quagmire once you have to turn over all of your “documents” during discovery.  

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Learn a Lesson from Smuckers®: Preserve Those BlackBerries

Suddenly find yourself at the wrong end of a trade secrets litigation?  Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry® smartphones.  Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions. The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys.  The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions.  But you might be thinking: “A BlackBerry wiped clean? Who cares!  All the e-mails the other side could possibly want are readily available on the server.”  This type of thinking could get you in trouble.  Let’s see why.

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Strike One, Strike Two . . .

Fool me once, shame on you.  Fool me twice, more shame on you.  Fool me three times and you are in some hot water!  Regardless of whether you are (or represent) the plaintiff or the defendant, your discovery obligations are the same: Absent a valid, court-sanctioned objection, you must comply with your adversary’s discovery demands. While electronically stored information (ESI) may be a rather esoteric concept for many of us (perhaps most), in the eyes of the law and the court, ESI is just as real as traditional paper documents; and one’s failure to search for and disclose ESI in a timely manner could lead to big problems for an attorney and the client.  In one case, it may have cost one company $25 million.

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