Key Insight: anti spoliation notice to third party re fax transmission reports and meta data not reasonable without notice to party
Nature of Case: Telephone Consumer Protection Act (?TCPA?)
Electronic Data Involved: fax transmission reports
Keywords: fax meta data and automatic deletion
Key Insight: Adverse inference when Brady destroyed cell phone days and subsequently punished for non-cooperation before trial was proper
Nature of Case: Collective Bargaining Agreement
Electronic Data Involved: Cell phone data
Keywords: football, Tom Brady, deflategate, collective bargaining agreement,
Key Insight: inadvertent destruction of computer after litigation hold not sanctioned
Nature of Case: wrongful termination
Electronic Data Involved: work computer
Keywords: no bad faith
Key Insight: social media that was not authenticated was admitted at trial
Nature of Case: criminal, aggravated assault
Electronic Data Involved: inauthenticated social media evidence
Keywords: social media, in-authenticated, admissible
Key Insight: whether stating that “ESI request is not relevant or proportional” is not sufficient.
Nature of Case: breach of contract
Electronic Data Involved: emails
Keywords: informal internal emails
Identified State Rule(s): D. Kan. 37(2)
Key Insight: Proportionality, Fraud
Nature of Case: Non-compete enforcement
Electronic Data Involved: scope of discovery
Keywords: Sedona principles
Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415, 2016 WL 815827 (S.D. Fla. Mar. 2, 2016)
In this case, the court heard argument regarding Defendant’s alleged spoliation in October, 2015—before amendments to the Rules of Civil Procedure went into effect—and deferred ruling on the motion until the end of trial. The amendments became effective “shortly after trial concluded.” Upon determining that “applying the new version of Rule 37(e) would be neither unjust nor impractical,” the court found that Defendant failed to take reasonable steps to preserve the information at-issue, despite a duty to do so; that the lost information could not be restored or replaced through additional discovery; and that Defendant acted with the intent to deprive Plaintiffs of the information’s use in the litigation. Accordingly, the court presumed that the lost information was unfavorable to the defendant. The court also noted that the sanction would be appropriate under prior standards, specifically pursuant to the court’s inherent authority to sanction a party’s bad faith litigation conduct.
Key Insight: Defendant alleges Plaintiff failed to produce documents and requests sanctions, including dismissal.
Nature of Case: Employment discrimination
Electronic Data Involved: ESI and scanned PDF documents and other documents.
Keywords: Proportionality, motion to compel (not filed)
Key Insight: Court concluded defendant had duty to preserve oily substance and was negligent in doing so. Permissive adverse inference instruction granted.
Nature of Case: personal injury
Electronic Data Involved: oily substance plaintiff slipped on
Keywords: adverse inference;
CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511 (S.D.N.Y. Apr. 4, 2016)
On April 4, the parties in this case stipulated to dismissal, with prejudice, of all remaining claims in the case and Defendants have withdrawn their motion for sanctions and acknowledged that, in light of “various evidence” provided by Plaintiffs, “neither Plaintiffs nor any of their owners or agents engaged in any discovery misconduct or wrongdoing . . . .”
A copy of the Joint Stipulation is available here.
Click here to read the original case summary addressing the application of recently-amended Fed. R. Civ. P. 37(e).
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