Tag Archives: Discovery

Federal Court: Discovery Sanctions Mooted Upon Settlement

Neil Bardack
May 4, 2016

Discovery sanctions are a fact of life in the courts and becoming more so in high stakes litigation. They can arise from judgment calls that are proved wrong by a court ruling, as in the case of HM Electronics, Inc. v. R.F. Technologies, Inc., 2016 WL 1267385 (S.D. Cal. March 15, 2016). There, the question arose regarding whether parties could compromise sanctions awarded by a magistrate judge in their settlement agreement in advance of the District Court decision to affirm that award.

Defendants (the client and its attorney) objected to the sanction award on the grounds that the parties’ settlement of their dispute, including the sanctions award, mooted the court’s jurisdiction to entertain the motion. The District Court agreed and vacated the sanctions award as moot. How did this happen?

The defendants were sanctioned for discovery misconduct under Rule 37 (for violation of prior discovery orders of the court) and under Rule26(g)(3) (raised by the court for improper certifications of discovery responses). This misconduct caused the plaintiff to incur great expense, and an award of compensatory sanctions was made to compensate plaintiff for the fees and costs involved in collecting discovery from defendants.

Two days before the hearing on discovery misconduct, the parties settled and dismissed the case, notifying the magistrate judge to vacate the motions that were scheduled to be heard. The hearing went forward partly because the magistrate judge held that the settlement could not affect the court’s right to pursue sanctions for the Rule 26 violations, which outlived the settlement. The court proceeded with the scheduled hearing, which resulted in a finding that the violations justified a compensatory sanctions award.

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Preserving Your CEO’s Vehicle Infotainment System Data

William Kellermann
August 7, 2015

Like the technology ecosystem it feeds from, electronic discovery is rife with acronyms, for good or ill.  One of the more recent is COPE – “Company Owned, Personally Enabled.”  The target of COPE is mobile devices – tablets, phablets, smartphones – whatever your preferred nom du jour.  It is the counterpoint to BYOD (“Bring Your Own Device”) the alternative way that mobile devices significantly impact enterprise security, privacy and electronic discovery efforts.  Which begs the question, does your Enterprise Mobile Management (EMM) system consider the ultimate corporate mobile device, the company car?

In the latest episode of vehicle hack-a-mania, Wired reports the successful hack of a Tesla Model S.  Researchers Hacked a Model S, But Tesla’s Already Released a Patch.  This report is just the latest news about a series of similar exploits, starting with the Jeep Cherokee hack reported two weeks ago.  Hackers Remotely Kill a Jeep On The Highway – With Me In It.  The motivation for the Tesla hack was to demonstrate a way to virtually “hot wire” and steal a Tesla, otherwise thought to be impervious to traditional methods of auto theft.  But what both these hacks reveal is a more insidious threat vector.

In each of the hacks demonstrated thus far, access to the command and control system was accomplished via a breach of the car’s infotainment system – the Bluetooth smartphone-enabled navigation and entertainment computer installed in many new vehicles.  Therein lies the rub.  In addition to being a method to steal or wreak havoc with vehicle operation, these systems are a virtual gold mine of hacker information or electronic discovery data, depending on where you sit.

I recently discussed new technology to forensically collect vehicle infotainment system data, such as iVE by Berla, with a close friend in the computer forensics business.  He related how in a test, a forensic analyst was able to extract the user and vehicle event data from over 30 prior users of a rental car.  User data includes call logs, contacts, text messages, navigation data and the names and MAC addresses of connected devices.  Examples of vehicle event data include doors opening, closing and locking, light activation, device connections, system resets and transmission shifter activation, such as a sequence from “park” to “reverse” to “drive.” Each event is accompanied by a time and date stamp, as well as geolocation data if the vehicle has a navigation system.  In all there are over 250 data attributes forensically available in the modern computerized vehicle system.  Much of this data is captured in addition to better known vehicle “black box” data found in all late-model cars and trucks and targeted for auto accident reconstruction.

Have your executives ever synchronized their Smartphone with the system in a rental car?  What about the systems in a company car or their personal vehicles?  Much of the above-mentioned information will have leaked onto those various systems.  For every hacker who ever rented a car, all this information is low hanging fruit for easy pickings.  It is also sitting out there unprotected in every vehicle traded-in or sold, as most vehicles have no technical mechanism to wipe this data. If nothing else, contact lists are extremely valuable to initiate spear-phishing attacks: spoofing an executive’s email or text-messaging address to send virus laden payloads to trusted advisors such as lawyers, doctors, accountants and financial services professionals.

Moreover, to the extent the company is obligated to preserve and collect this data for electronic discovery, is that data source contemplated by your internal electronic discovery protocols?  As with anything else, such devices may be the bane or panacea, depending on your particular circumstances.  Text messages deleted from a device may be recovered from the car to save the company from a spoliation sanction.  On the flip side, a savvy opposing counsel may make a credible argument the data should have been collected for preservation before the executive traded-in the car.

As with everything else with technology, these concepts may take some time to seep into the consciousness of the legal profession.  Nevertheless, forward thinking lawyers and technologists have another dimension to track when mapping out data sources for investigations and discovery.  Similarly, Information Governance professionals must consider the retention, disposition, security and privacy impacts presented by vehicle infotainment systems bridged to corporate information systems via mobile devices.

Proposed E-Discovery Rule To Test Document Retention Policies

Chris Spiers and Matthew Peck
May 6, 2015

The management of electronically stored information (“ESI”) is becoming an increasingly prominent concern for companies, large and small, and their attorneys tasked with managing litigation. Given the exponential growth in the volume of ESI over the past two decades, it should come as no surprise that there has been a parallel increase in the amount of litigation related to the management (and mismanagement) of ESI under the Federal Rules of Civil Procedure.

Click here for a general outline of best practices for companies and their attorneys related to the identification and preservation of relevant ESI through internal document retention policies and the issuance of litigation hold letters. The article, co-authored by Matt Peck and Chris Spiers, first highlights recent case law that illustrates the potential scope and severity of sanctions imposed on parties who fail to adequately identify, collect and preserve relevant ESI under the Rules.

The article then discusses the proposed amendments to Rule 37(e), which, if adopted, would provide a uniform process for the courts to analyze spoliation in the ESI-context and resolve the existing split of authority regarding the culpability required to impose the harshest, case-dispositive sanctions under the current Rules.


Are All Responses To Requests For Admission Admissible At Trial?

Eric Junginger
February 23, 2015

Under California law, admissions in response to Requests for Admission (“RFA”) are binding on the admitting party at trial.  [CCP §2033.410.]  But, are denials of RFAs also admissible at trial?  In Gonsalves v. Li, California’s appellate court for the first time said no.

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Consequences for Late Responses to Requests for Admission

Michele Trausch
February 19, 2014

St. Mary v. Superior Court (Schellenberg) 14 CDOS 1242 (1/31/14)

Lisa St. Mary gave her life savings to a company based on a radio ad she had heard; the company promised to invest in renovating real property. St. Mary lost her investment, the company went bankrupt, and she sued its principals for fraud.

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