New York City Asbestos Litigation Presiding Judge Rules Manufacturer Should Have Reasonably Anticipated Asbestos Litigation 10 Years Before First Lawsuit
>
> On November 5, 2015, Judge Peter H. Moulton, presiding judge over the New
> York City Asbestos Litigation (NYCAL), ruled in *Warren v. AmChem Products,
> et al.
> <http://www.wilsonelser.com/writable/files/Client_Alerts/order_on_sanctions_motion.pdf <http://www.wilsonelser.com/writable/files/Client_Alerts/order_on_sanctions_motion.pdf>>*,
> 190281/2014, that J-M Manufacturing Company, Inc., was subject to
> spoliation sanctions for the destruction of corporate documents in two
> separate incidents. The judge imposed the sanction that the plaintiff is
> entitled to a jury instruction allowing the jury to infer that the missing
> documents would have supported the plaintiff’s claims.
In one of the quotes they say…. the courts relied on the more recent case law regarding spoliation of electronically stored information such as emails or other computer files and also stated that the preservation of relevant evidence is the same now as it was in 1982. That is the year Johns Manville should have instituted a litigation hold. That seems a Nunc Pro Tunc ruling. (Now for Then interpretation) Rulings that stipulated anticipation of litigation and creating an electronic hold and preparation of the “Datamap” were not in existence until the SOX rulings which were a result of the ENRON situation.
Given the broad latitude that these courts have established, it is easy to see that they will hold corporations that hold records in the Cloud liable for production of all electronic records as they take such a broad brush to the issue. If the Judge wishes the information presented they place no reasonable requirement on that production.
Missing boxes, missing emails and missing Cloud data will all be treated the same.
Records Managers should reasonably alert the Chief Legal Counsel, the CIO and the CFO that this requirement to produce any and all information stored in the Cloud as an electronic record is now in force and that a Datamap should be created immediately if at any moment in the future litigation could occur.
When should we expect the first class action lawsuit by corporations against the main practitioners of Cloud Storage to be prepared to produce all electronic records as required by the Courts. The lawsuits against the Cloud could be the “Asbestos Litigation” of the electronic age. Asbestos manufacturers knew the health effects of the christmas tree shaped friable fibers that embed in the lungs like a fish hook and because it was such an amazing insulator they ignored the risk.
The Cloud in the same fashion, knows that their method of storing electronic records cannot comply with the requirements of the Court System that demands a data map, long term storage as dictated by the needs of the court and proof that no records are missing.
In the case above the records lost were not even requested in discovery but because they were missing, the jury was instructed to consider them in negative inference to the defendant.
It is worth noting that the court relied heavily on recent cases that discussed the scope of the litigation hold with regard to electronically stored information such as emails or other computer files, not the paper documents at issue in this case. Judge Moulton stated in a footnote that the law regarding preservation of relevant evidence is substantially the same today as it was in 1982, the year he found that J-M should have instituted a litigation hold. He also noted that the “propriety of an adverse inference charge in cases involving willfully or grossly negligent destruction of evidence was recognized as early as 1898.” (Emphasis added.) - See more at: http://www.natlawreview.com/article/new-york-city-asbestos-litigation-presiding-judge-rules-manufacturer-should-have#sthash.FOiv03BY.dpuf
Given that certain rulings attach sanctions and criminal penalties for lack of compliance, (SOX) could a records manager who knows the import of these rulings be jailed for failure to comply? Or does it place a burden on the records manager to alert management and pass this burden to the C-Level office.
I know a number of RM’s are highly dependent on the Cloud now. This should be of interest how broad this judge is ruling on evidentiary rulings. Or are you still too full of turkey to judge?
> It is worth noting that the court relied heavily on recent cases that discussed the scope of the litigation hold with regard to electronically stored information such as emails or other computer files, not the paper documents at issue in this case. Judge Moulton stated in a footnote that the law regarding preservation of relevant evidence is substantially the same today as it was in 1982, the year he found that J-M should have instituted a litigation hold. He also noted that the “propriety of an adverse inference charge in cases involving willfully or grossly negligent destruction of evidence was recognized as early as 1898.” (Emphasis added.) - See more at: http://www.natlawreview.com/article/new-york-city-asbestos-litigation-presiding-judge-rules-manufacturer-should-have#sthash.FOiv03BY.dpuf
> It is worth noting that the court relied heavily on recent cases that discussed the scope of the litigation hold with regard to electronically stored information such as emails or other computer files, not the paper documents at issue in this case. Judge Moulton stated in a footnote that the law regarding preservation of relevant evidence is substantially the same today as it was in 1982, the year he found that J-M should have instituted a litigation hold. He also noted that the “propriety of an adverse inference charge in cases involving willfully or grossly negligent destruction of evidence was recognized as early as 1898.” (Emphasis added.) - See more at: http://www.natlawreview.com/article/new-york-city-asbestos-litigation-presiding-judge-rules-manufacturer-should-have#sthash.FOiv03BY.dpuf
Hugh Smith
FIRELOCK Fireproof Modular Vaults
[log in to unmask]
(610) 756-4440 Fax (610) 756-4134
WWW.FIRELOCK.COM
List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance
To unsubscribe from this list, click the below link. If not already present, place UNSUBSCRIBE RECMGMT-L or UNSUB RECMGMT-L in the body of the message.
mailto:[log in to unmask]
|
