Mike Hamilton, Exterro: Fall 2020’s Most Interesting E-Discovery Cases

Extract from Mike Hamilton’s article “Fall 2020’s Most Interesting E-Discovery Cases”

Judges across the country are not in alignment on whether spoliation sanctions can be warranted under the court’s inherent authority — and outside the scope of FRCP 37(e). Regular readers of our quarterly Case Law Review might recall that the court’s use of Inherent Authority was a topic of our Summer review in the September issue; where does FRCP 37(e), which governs negative inference sanctions for lost ESI, come in to play? And is lost electronically stored information (ESI) truly lost if it’s available outside of a physical hard-drive?

In this quarter’s Case Law Review, we’ll take a look at recent rulings that cover the discoverability of ESI on sources other than a computer, whether social media posts offer any degree of privacy, and the importance of proportionality when attempting to compel production during litigation.

Confusion Continues Regarding the Court’s Power to Use Inherent Authority as Basis for E-Discovery Sanctions

Alsadi v. Intel Corporation, D. Ariz. July 17, 2020

Judges across the country are not in alignment on whether spoliation sanctions can be warranted under the court’s inherent authority and outside the scope of FRCP 37(e). This ruling clearly states that inherent authority should not be used when issuing these e-discovery sanctions.

Read more here

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