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spoliation

“Microsoft is legally obligated to store an average of 60 million pages of documents for every lawsuit brought against it, even though only 88 of those will end up being used in court.” [Jacob Kastrenakes, The Verge] The company is one of many that has announced its support for a change in the Federal Rules of Civil Procedure, proposed in August by the Committee on Rules of Practice and Procedure, which would narrow the scope of obligatory discovery. The burden of discovery “deters companies from defending themselves against meritless suits and slows the process of dispute resolution,” writes Jon Palmer, Microsoft’s assistant general counsel. The proposal would also lay forth clearer standards on document retention so as to curb proliferating litigation over charges of spoliation.

The Washington Legal Foundation likes the proposals too, as does James Beck at Drug and Device Law. Not happy about it: the litigation lobby and some Senate Democrats friendly to their cause. The Judicial Conference is holding hearings that are likely to be more balanced. Comments with the Advisory Committee are due by February 15, 2014.

– against patent trolls. But Kevin O’Connor, CEO of a startup named FindTheBest, went ahead and did so [Joe Mullin, Ars Technica] Exploding and escalating-on-response demands, threats of criminal prosecution, demands for “sequestration” (removal from service) of his company’s computers to prevent evidence spoliation, and promises of burdensome discovery are all part of the story.

And so the divorce case winds up generating massive demands for hard drive contents and other electronic discovery. Draconian spoliation sanctions, as exemplified in the Morgan Stanley-Perelman and Zubulake-UBS Warburg cases, make a potentially fatal trap for the unwary:

Defense lawyers complain that their clients often are forced to supply voluminous information at great cost with little benefit. And because there is so much more information potentially subject to a discovery order, the chances are greater that a client might violate the order by inadvertently deleting data.

“Does this enhance justice? Not usually,” said Tess Blair, a partner at Morgan, Lewis & Bockius L.L.P., who heads the 1,350-lawyer firm’s electronic-data-discovery unit. “It becomes a weapon in many cases.”

(Chris Mondics, “Ediscovery profoundly changing lawyering”, Philadelphia Inquirer, Jun. 8).

Three cases of catastrophic injury to children, three defendants asked to pay:

  • Freak accident in school parking lot “foreseeable”. According to a Los Angeles jury, it was reasonably foreseeable that an ailing parent driving a disability-converted van with hand-controlled accelerator and brakes would lose control of her vehicle and jump the curb at full speed, killing first-grader Jordan Sandels in the company of her father at Encino’s Lanai Road Elementary School in 2005. Aside from the many and baffling supposed lessons of the resulting $10 million verdict for school grounds planners (always build lots big enough that parents won’t have to park off-site?), a highlight was the jury’s finding that the parent behind the wheel was only 20 percent to blame and shouldn’t have to pay anything [LA Times via Handel on the Law]
  • Destroy evidence, then win $41 million from second defendant. Joseph Provenza, 13, was catastrophically burned in 2001 when he “jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire” [Bowman & Brooke summary] The plaintiff’s father, himself a plaintiff in the suit, later admitted that he willfully removed and discarded a bypass wire from the motorcycle before Yamaha’s investigators could see it because he thought the evidence of modification might interfere with his son’s lawsuit, and either he or members of the legal team removed or modified other relevant equipment on the vehicle. A judge dismissed the claims against Yamaha, citing willful and pervasive spoliation of evidence as well as lack of candor in discovery responses on the issue. The family then proceeded to trial against a Wisconsin clothing manufacturer which it argued should have made its garments flame-retardant because they were promoted for use with motorcycles, although federal law did not and does not require flame retardance in such garments. The jury awarded $41 million; a defense lawyer says the jurors were never allowed to learn about the hot-wire modification, though it was the cause of the accident, or the subsequent spoliation. [Las Vegas Review-Journal, Janesville (Wis.) Gazette; Carcione law firm (also of Romo v. Ford Motor fame)]. More: BrooklynWolf.
  • Schools sometimes responsible for injuries after school hours.The South Main Street Elementary School in Pleasantville, N.J. had long preannounced a 1:30 p.m. early dismissal on a certain day in 2001. Third-grader Joseph Jerkins was allowed to leave, in accord with school policy for youngsters whose families had not requested that they be released only into adult custody. Two hours and twenty minutes later, while playing with a friend, Joseph ran into the street and was struck by a car and horribly injured. The family said it had not been adequately informed of the early dismissal. A trial court dismissed the suit, but the New Jersey Supreme Court, announcing a new duty of care for school districts, ruled that the family could sue on the grounds that the school’s policies should have restrained the boy from leaving. The district settled for $6 million. [AP/Philly.com; NJ Principals and Supervisors Association]
Our first installment of stories from 2007 that merited coverage but slipped away is here.

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December 14 roundup

by Walter Olson on December 14, 2007

  • This tale of a class-action settlement over male, uh, enhancement products sure looks like a parody, and yet…. Please let it be a parody [Magill/DirectMag, Levine/CircleID, LEMSettlement.com]
  • Big law firm partners say million a year really isn’t enough to keep up social status in Manhattan or Silicon Valley [ABA Journal]
  • Clerical error results in Disney characters’ getting subpoenaed in Italian criminal case [USA Today]
  • We’ve slipped to second place in this Blawg 100 contest thing, don’t you like us? [vote here]
  • Update on Miami’s fire-fee scandal (Sept. 19): law firm of Adorno & Yoss, which once sought $2 million fee, will now pay taxpayers $1.6 million; bar probe continues [Miami Herald, Florida Masochist]
  • Wife had begged him not to go kite-surfing in Long Island Sound in winter, but still sues town over its failure to warn against taking such risks [Conn. Post]
  • “I don’t do any medmal,” lawyer hastens to make known as he’s being stitched up in ER [GruntDoc]
  • Very expensive speech: “beyond cruel” shock-jock comments ridiculing Albany, N.Y. burn victim end in $1 million settlement, spoliation also raised as issue [ABA Journal]
  • Hassle of dealing with regs in charming Old Town Alexandria is one that only chain outlets may be up to shouldering [Balko, Reason]
  • Turkish lawyer sues Italian soccer team, deems its “Crusader-style” red crosses “offensive to Muslim sensibilities” [Times Online, UK]
  • Plaintiff’s lawyers tend to throw the most opulent holiday parties in Texas, but our readers knew that already [Houston Chronicle via Lat]
  • Two men shot in suspected drug deal win $1.7 million in negligent-security suit against hotel [eight years ago on Overlawyered]

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“In one recent 18-month period, seven federal and state courts imposed sanctions on Union Pacific, the nation’s biggest railroad, for destroying or failing to preserve evidence in crossing accidents, and an eighth court ordered a case retried. One sanction has since been overturned on appeal.” Big New York Times front-pager endorses charges from plaintiff’s bar that the railroad has been less than diligent in preserving potentially unhelpful evidence after rail-motor vehicle crashes (Walt Bogdanich, “In Deaths at Rail Crossings, Missing Evidence and Silence”, Jul. 11).

“The Walt Disney Company prevailed on Monday in a 13-year legal dispute over royalties related to its Winnie the Pooh franchise when a judge dismissed the case, contending the plaintiff altered confidential memorandums and covered up the theft of documents obtained by a private investigator who sifted through the company’s trash. Judge Charles W. McCoy of Los Angeles Superior Court wrote in his decision that the misconduct of the Slesinger family, which sued Disney in 1991 after contending the company cheated it out of royalty fees, was ‘so egregious that no remedy short of terminating sanctions’ would adequately protect Disney and the justice system from further abuse.” The family is vowing to appeal (Laura Holson, “After 13 Years, Judge Dismisses Case on Pooh Bear Royalties”, New York Times, Mar. 30). Earlier in the case, Disney had drawn sanctions “for deliberately destroying 40 boxes of documents that could have been relevant to the case, including a file marked ‘Winnie the Pooh-legal problems’”; see “The Document-Shredding Facility at Pooh Corner”, Aug. 24-26, 2001. For more on the propensity of some investigators retained in litigation to rifle adversaries’ garbage and commit other invasions of privacy, see Nov. 11, 2003 (FBI probe of Hollywood lawyers); Jul. 28-30, 2000 (Terry Lenzner, Oracle). More: Southern California Law Blog has followed the case.