Case Got Your Tongue? Safe Harbor, Spoliation & Sanctions, Oh My!!!

Melting Pssssst!  See the attorney in the funny hat on the right?  She screwed up her e-discovery case!

A little housecleaning, if I may.  Some of you may have noticed that I didn't do this feature last month.  That's because, after reviewing all of the cases, I kept repeating the same word – Duh!  My assumption is that you, like I, have very little time to waste.

Last month's cases involved weak attorney arguments – made to cover for a mistake – that were tossed by a judge who was having none of it!  Summaries are available everywhere, but I'm looking for cases that either 1) tell us something we don't know, or 2) clarify something we do know.

KCH Services, Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 21, 2009)

NOTICE THIS! – The issue is simple.  When is one sufficiently on notice of potential litigation?  Simple in principle, maybe, but think about it for a moment.  If you're a huge company, irate customers might be calling every day, threatening to sue.  Should you take every single one seriously and immediately issue a litigation hold letter?  In the instant case, the court ruled (in my opinion, correctly) that the person receiving the call had sufficient basis to deem the threat of litigation credible and serious and therefore, should have issued a hold in anticipation of same.

Arista Records LLC v. Usenet.com, "Usenet II", 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009)

HOW SAFE IS YOUR HARBOR? – I posed this question recently in my analysis of the new e-discovery California rule.  Here's an example of how you lose it.  Shenanigans!  Is that a legal term?  Oh well…

Spieker v. Quest Cherokee, LLC, “Spieker II”, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009)

COST-SHIFTING TURNED INSIDE/OUT – I'll give this one points for originality, but again, the fact that your IT staff has no experience complying with an e-discovery subpoena is not going to get you any sympathy from the judge.  As far as the costs themselves, I wonder if a California judge might rule differently using our "Toshiba" standard?

In a future post, I will endeavor to address this question – if I don't have to waste too much time reading the "Duh!" cases…

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