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Federal E-Discovery: Court Infers Intentional, Bad Faith Spoliation From Use of Ephemeral Messaging

December 3, 2019 Download PDF

Litigation partners Christopher Boehning and Daniel Toal’s latest Federal E-Discovery column appeared in the December 3 issue of the New York Law Journal. The article, “Court Infers Intentional, Bad Faith Spoliation From Use of Ephemeral Messaging,” discusses the recent case of Herzig v. Ark Found. Med. Care, which addresses the issue of ephemeral messaging and spoliation. The court there found that the use of the ephemeral messaging app Signal was evidence of bad faith sufficient to warrant sanctions. In their article, Chris and Dan question the court’s ruling, especially considering it failed to apply – or even mention – Federal Rule of Civil Procedure 37(e), which is explicitly designed to govern situations where there may have been spoliation of electronic information. Litigation counsel Steven Herzog, E-Discovery Counsel Ross Gotler and E-Discovery Attorney Lidia Kekis assisted in the preparation of this article.

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