Key Insight: Where party failed to provide adequate explanation for non-disclosure of relevant email and engaged in other questionable behavior, including providing evasive responses to deposition questions, but where scope of prejudice to opposing party was ?not clear,? court declined to impose dispositive sanctions but ordered discovery re-opened to allow deposition regarding the email and surrounding issues
Key Insight: Court granted Plaintiff?s motion that Defendants bear the costs Plaintiff incurred in producing archived emails, implicated by Defendant?s 30(b)(6) notice. The notice came after a year and a half of discovery and one month before the discovery deadline. Plaintiff was required to use a third party to conduct the search, put the retrieved emails on discs, send them to a copy service to convert to TIFF files and print them so Plaintiff?s counsel could review for relevancy and privilege. Plaintiff spent approximately $35,000 on this process. The Court held that Plaintiff?s Motion was timely and Defendants had notice before the emails were produced that Plaintiff was seeking costs, Plaintiff met its burden of showing the cost and burden incurred were undue and conversion of the discs to TIFF format was necessary in order for Plaintiff?s counsel to review the emails prior to production.
Nature of Case: Insurance indemnification
Electronic Data Involved: Archived email
Key Insight: Court adopted recommendation of the magistrate judge to impose an adverse inference and exclude certain evidence as sanction for spoliation where defendants indicated they could not locate information, including ESI, which, according to records retention requirements, should have been in their possession at the time plaintiff propounded his request and thus should have been preserved and produced; court found ?clear and convincing evidence that defendants were ?at fault? for recklessly and negligently allowing the documents to be destroyed
Nature of Case: Civil rights complaint arising from service of pork to Muslim inmate
Electronic Data Involved: Hard copy, ESI
Key Insight: Despite testimony that the methods utilized to copy surveillance tape could reduce the image?s fine detail and the State?s failure to comply with a court order to produce the original of the surveillance tape because it had been lost, the trial court did not err in failing to grant defendant a new trial where a duplicate tape is admissible to the same extent as the original and where there was no evidence of bad faith in the loss of the tape; in so deciding, court also cited testimony that defendant did not objet
Nature of Case: Criminal
Electronic Data Involved: Copy of original surveillance tape
Key Insight: Court held admission of defendant?s cell phone was not error and did not constitute impermissible hearsay where the prosecution sought to show that an undercover officer?s number showed up on defendant?s phone, where the phone was authenticated by the officer?s testimony, and where the telephone was not a ?person? or ?declarant? making ?a communicative ?statement? within the meaning of the relevant hearsay rule; court rejected argument that admission of phone was error because it contained other phone numbers, texts, etc. where defendant failed to show that he was prejudiced and failed to identify any particular message, etc. that the jury would have obtained from the phone
Nature of Case: Criminal
Electronic Data Involved: Cellular phone
Key Insight: Where a forensic examiner appointed by the discovery referee submitted a declaration that the emails admitted into evidence were retrieved from plaintiff?s computer and that the printouts were accurate representations of the retrieved messages, and where the emails contained information only the plaintiff would know and the trial court found that ?the emails ?were, at least in part, authenticated by the plaintiff himself?, the appellate court found that there was sufficient evidence to support the trial court?s finding that the emails were genuine
Nature of Case: Violations of Political Reform Act
Electronic Data Involved: Emails
Key Insight: Where plaintiff settled its claim of intentional spoliation against one defendant no longer in the case but failed to bring that claim against the defendants that remained and where the evidence was undisputed that the defendant who had settled all claims and was no longer a party to the litigation had maintained exclusive custody and control of the at-issue hard drives and plaintiff offered no evidence of the remaining defendants? involvement in destroying the relevant hard drives, the court held that the remaining defendants could not be sanctioned under either Ohio law or Federal law
Nature of Case: Breach of contract, misappropriation of trade secrets, copyright infringement, etc.
Electronic Data Involved: Hard drives
Key Insight: Court granted Motion to Quash where the court determined that the subpoena was unduly burdensome on the non-party and that ?the discovery sought can be obtained from more reasonable discovery methods, namely pursuit of full responses by the defendants to interrogatories and requests for production along with additional or supplemental examination of the defendants? electronically stored documents?
Nature of Case: Misappropriation of trade secrets, unfair competition, etc.
Electronic Data Involved: ESI
Key Insight: Court denied defendant?s motion for a stay of the Magistrate Judge?s order to produce source code pending review of that order by the District Court where the Magistrate Judge was satisfied as to the relevance of the source code and the ?stringent protection? ordered surrounding defendant?s production; court subjected review of the source code to strict circumstances, including that plaintiff only be permitted to view the code at a location of defendant?s choosing on a non-networked, stand alone, password-protected computer with limited assistance from experts and counsel, among other conditions
Nature of Case: Patent infringement
Electronic Data Involved: Source code
Key Insight: Court found ?computer-generated? exhibits summarizing loss adjustment expense payments ?fit squarely within the business records exception to hearsay? and were properly authenticated by the testimony of an employee who, although not responsible for actually inputting each piece of data that was summarized in the exhibit, was sufficiently familiar with the record system that his ?description of the process used to create the summaries was sufficient to authenticate the evidence?
Nature of Case: Breach of insurance contract
Electronic Data Involved: Computer-generated summaries
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