Show Me The Evidence – Use of Social Media Information at Trial A defendant in an employment action discovers through Facebook that a plaintiff has lied about her discrimination claim. The information essentially undermines plaintiff’s entire claim. However, such information does not make it to a factfinder at trial unless the evidentiary foundations can be [...]

Judge Grimm Authors Tutorial on Federal Rule of Evidence 502 Magistrate Judge Paul W. Grimm, a renowned authority on e-discovery, recently published an article in the Richmond Journal of Law and Technology discussing Federal Rule of Evidence 502. Judge Grimm’s article, “Federal Rule of Evidence 502: Has It Lived Up To Its Potential?,” provides a [...]

Court Rejects Refusal to Issue Litigation Hold Before 26(f) Conference, Orders Litigation Hold on All Evidence Reasonably Related to Pending Litigation Haraburda v. Arcelor Mittal USA, Inc., No. 2:11 cv 93, 2011 WL 2600756 (N.D. Ind. June 28, 2011) In this case, plaintiff came to believe, based on defendant’s comments and refusal to issue a [...]

When Does the Duty to Preserve Electronic Evidence Arise? The duty to preserve electronic evidence is triggered once a party “reasonably anticipates” litigation. Silvestri v. GMC, 271 F.3d 583, 591 (4th Cir. 2001);  Pension Committee of the Univ. of Montreal Pension Plan v. Banc of Am. Securities, LLC, 685 F. Supp. 2d 456, 466 (S.D.N.Y. 2010). At [...]

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record [...]

The YouTube Cameras that Create Instant Electronic Evidence New video cameras on the market take YouTube ready video.[1]  It is a matter of time before it is commonplace for these cameras to immediately upload footage via embedded wireless to YouTube.  For many plaintiff attorneys and district attorneys, this is a dream come true:  People have [...]

A new Role for Geo-location evidence in eDiscovery The surge and ubiquity of geo-based technology, such as GPS apps in smart phones, is giving rise to a new world of location based electronic discovery (LBED). The geo-spatial data stored within a custodian’s devices (cell phones, iPads, etc.) and ESI metadata may conflict with their own [...]

This is the leading case regarding how to admit electronically stored information (ESI) into evidence. To admit ESI into evidence, certain rules of evidence must be followed.