Understanding the Intent to Deprive

The 2015 Amendments to the Federal Rules of Civil Procedure fundamentally altered spoliation of evidence cases with requiring wronged parties to prove ESI was lost with an “intent to deprive.” If a party can prove there was “intent” with the destruction of ESI, then a court may “presume that the lost information is unfavorable to the party, issue an adverse-inference instruction, or dismiss the action or enter a default judgment.” Federal Rule of Civil Procedure Rule 37(e)(2)(A)-(C).

Many cases have very little analysis with courts quickly holding there was no “intent” to deprive the party of the lost electronically stored information. When Courts do find the “intent to deprive,” there is usually either extreme facts or courts taking a deductive leap over the lost ESI.

TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo is a case where a Plaintiff was able to demonstrate ESI was lost with two out of three challenges to lost data.

The Five Most Critical Steps to Protect Reputations During Litigation
POSTED ON April 18

Crisis sometimes happens fast. Other times, it has been brewing for a while and there is much that can be done in advance before it becomes public or otherwise known by your stakeholders.

There are so many things that can be done to plan and prepare, manage and then rehabilitate after a crisis – which often includes litigation – but there are certain critical things that must be done.

Here are the five (5) most critical things we think should be done to protect reputations in the midst of crisis, especially those involving legal issues.

My, My How You Have Grown
POSTED ON April 12

Shepherd Data Services celebrates its 15 year anniversary this month.  My, my, how things have changed in 15 years! But let’s go back even further. Let’s explore how the skills and tools necessary to practice law have changed over a few generations.

When I prepare blogs, I often work in my home office and my gaze tends to rest upon a photo on my desk of my father’s graduating law school class.  My father, Obert Chalstrom, graduated in 1952 from the University of South Dakota Law School. 

Be Bold for Change
POSTED ON March 07

March 8 is International Women’s Day. The theme for 2017 is “Be Bold for Change.” But what empowers a woman to carry this charge forward?

On the wall of the former location of Origami restaurant in Minneapolis hung a serigraph of a woman running with horses entitled “Blue Lady.” Horses embody speed, strength, and endurance, and the woman in the work—a blue figure seemingly comfortable amidst a flurry of movement and color: reds, browns, yellows, oranges, and black—seems to draw from these very qualities. Speed, strength, and endurance carry her forward. Horses also symbolize freedom. The woman is free to be herself.

Lesson from NYC Legalweek: “Be More Geeky”
POSTED ON February 21

Anytime I visit NYC I develop an earworm of Frank Sinatra singing, “These vagabond shoes, are longing to stray right through the very heart of it, New York, New York.”

Now, you hear it too, don’t you?

It occurred to me during this year’s Legaltech (now part of Legalweek) that the most efficient means of getting from point A to point B in downtown Manhattan is to walk.  Of course, there are a variety of other ways to get around if I didn’t want to actually be somewhere physically – email, text, video conference, etc.  But if I need to eat, attend an event, or meet someone, walking was still the best means within an approximate 15 block radius.  Beyond that 15 block area, I usually opted for other means such as Uber, taxi, or subway.  Within the more immediate radius, however, those technological options simply weren’t efficient and were much slower than simply hoofing it.