Litigators and the courts understand that the "punishment must fit the crime." As such, the sanction for an ESI spoliation offense often does not merit that a party's pleading be stricken, although sought in most instances. Rather, recent decisions review in detail the circumstances surrounding digital or electronic spoliation claims, and courts seek to craft a balanced sanction upon reviewing the "prejudice" to both sides, which might be the issuance of an adverse inference charge or a preclusion order. Alternatively, courts may direct further discovery, including depositions, in an attempt to be able to more clearly evaluate the circumstances under which ESI spoliation occurred, or defer issuing a sanction until a later date, with the goal of then being able to determine the appropriate sanction on a proper record.

Facebook discovery is also becoming more refined. Movants are seeking to compel Facebook evidence predicated upon "narrower" ESI requests. In addition, movants are first reviewing what is publicly available on Facebook or from other public sources in order to convince a court that private Facebook evidence should be produced where it would "contradict" positions taken by the opposing party. Movants also are suggesting that any review of private Facebook postings be done in camera.

Adverse Inference Sanction

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]