Archive for November 2015

Federal Rule Changes Affect e-Discovery – Are You Ready This Time?

Learn Strategies for Litigating in the New Framework

Join Us For a Complimentary 3 Hour CLE

Important updates and revisions to the Federal Rules of Civil Procedure take effect on December 1, 2015, absent (unlikely) action by Congress. These changes will undoubtedly have a substantial effect on litigation (and pre-litigation) strategies and practice, particularly with regard to discovery. Issues addressed by the amendments include — among others — the scope of discovery, responses and objections to requests for production, and preservation (or loss) of electronically stored information.

Please join us for a lively and informative strategic discussion of the amendments, the ways they will affect your future practice and cases, and the steps you can take to address and embrace the new paradigms shaped by these changes. In-house counsel will join members of the K&L Gates global e-Discovery Analysis & Technology practice group to address the significance of these rule changes, their ethical implications for legal practitioners, the opportunities for advocacy afforded by the rules’ increased attention to proportionality, and the practical effects of these rule changes on record preservation practices.

Live programs will take place on December 1st in Seattle, WA and December 3rd in Pittsburgh, PA.  These programs will also be available via webinar.

Seattle Program:

December 1, 2015
1:30 p.m. – 5:30 p.m.

K&L Gates
925 Fourth Ave, Suite 2900
Seattle, WA 98104

Click HERE to Register.

Pittsburgh Program:

December 3, 2015
8:30 a.m. – 12:15 p.m.

K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222-2613

Click HERE to Register.

These programs will also be available via webinar. To participate, email Allison Peterson, and log-in instructions will be emailed to you the day before the program.

For additional questions, contact Allison Peterson.

Pending CLE Credit (including one hour of ethics)

Evidence and Argument Regarding Spoliation Excluded Absent Evidence of Prejudice and to Avoid “Confusing the Issues”

West v. Talton, No. 5:13-cv-338 (CAR), 2015 WL 6675565 (M.D. Ga. Nov. 2, 2015)

In this case, the court granted Defendants’ motion to exclude “Plaintiff’s use of any argument or evidence of alleged spoliation” where, despite Defendants’ failure to preserve emails from an individual defendant, they were nonetheless able to locate the relevant defendant’s “old computer” and to hire a third party to search for and recover relevant emails and documents from the same.  Thus, the court found that Plaintiff failed to establish prejudice.

In this short case, the court addressed Defendants’ failure to preserve an individual defendant’s emails following his resignation.  Specifically, the emails were “deleted pursuant to a routine procedure to delete an employee’s email account shortly after the employee left the Sheriff’s Department and to rewrite over the backup tapes of the server every six months.”  Plaintiff argued that the failure to preserve was more than “mere negligence” in light of the notice provided by his EEOC complaint.

Taking up the issue, the court reasoned that Plaintiff’s claims of prejudice were “completely speculative” where a third party had been hired to restore the emails from the individual defendant’s old computer and where, according to the court, “Plaintiff received more information … than what was originally requested during discovery.”  The court also noted the lack of evidence of “mass destruction” or “wiping.”  Thus, the court concluded that the Plaintiff failed to establish prejudice and that a sanction was therefore inappropriate.

In so concluding, the court also cited Fed. R. Evid. 403, reasoning that “[t]he Court finds the danger of confusing the issues and misleading the jury outweighs the probative value of such evidence.”

Defendants’ Motion to exclude evidence or argument regarding spoliation was granted.

A copy of the court’s brief opinion is available here available here.