January 19, 2016 Articles

California's New E-Competence Rule

Even carefully crafted legal hold and preservation letters to custodian employees are insufficient defenses where relevant evidence goes missing.

By Lisa Sherman, Benjamin Rose, and Jim Carden

A recent decision issued by the district court of the Southern District of California should serve as a wake-up call to companies, and their counsel, nationwide to become e-competent and immediately update their practices as soon as their clients are put on notice of possible litigation involving potentially relevant electronically stored information (ESI).

In NuVasive, Inc. v. Madsen Medical, Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015), the court issued an adverse inference instruction to a jury, in part, due to the plaintiff company’s failure to properly preserve text messages from its employees who were classified as key data custodians. Thus, the jury was allowed to infer that the evidence would have been adverse to the plaintiff and to adopt the defendants’ reasonable interpretation of what the text messages would have said.

Premium Content For:
  • Litigation Section
Join - Now