Key Insight: Discovery sanctions motion.
Nature of Case: Workplace discrimination.
Electronic Data Involved: Employment records including personnel files of supervisors and documents regarding performance of other employees.
Keywords: Failure to preserve, search terms, motion to compel.
Key Insight: If a party cannot show that destruction of video footage was intentional, then sanctions can be awarded unless it can be shown that the destroyed evidence would be relevant.
Nature of Case: grocery store slip and fall
Electronic Data Involved: surveillance camera footage
Keywords: video surveillance, spoliation, intentional destruction of evidence
Key Insight: facebook information discovered after award was not allowed because Defendant could have developed information earlier and failed to do so.
Nature of Case: Personal Injury
Electronic Data Involved: Social Media
Keywords: post-judgment motion; new evidence; social media
In re a Warrant to Search a Certain E-mail Account Controlled & Maintained by Microsoft Corp., No. 14-2985 (2d Cir. July 14, 2016)
In this case, Microsoft Corporation appealed orders from the United States District Court for the Southern District of New York denying its motion to quash a warrant issued under § 2703 of the Stored Communications Act and holding Microsoft in contempt for “refusing to execute the Warrant on the government’s behalf.” The warrant directed Microsoft to “seize and produce the contents of an e-mail account that it maintains for a customer who uses the company’s electronic communications services.” Although Microsoft produced the relevant customer’s non-content information which was stored in the United States, it refused to access and import data that was stored and maintained in Ireland.
Key Insight: Citation to Rule/caselaw that omits consideration of “proportionality” is reckless and sanctionable.
Nature of Case: Fair Debt Collection Practice Act (FDCPA) Action
Electronic Data Involved: Medical records
Keywords: “misstate[ment] [of] the law” “outdated caselaw” “recklessly misrepresented” “medical condition”
Key Insight: Sanctions for attorney’s fees are warranted when computer files are deleted (even if they are recovered) and when a phone is recklessly lost in a “palpably suspicious” incident.
Nature of Case: Corporate management disputes between co-founders
Electronic Data Involved: cell phone contents, computer files
Keywords: spoliation, palpably suspicious, lost phone, ineffective spoliation, reckless failure to preserve
Key Insight: if images of hard drives is sufficient prodcution of the hard drives themselves
Nature of Case: Fraud, conversion of instruments, failure to exercise ordinary care
Electronic Data Involved: all computers midwest obtained and the information on those computers at the time they were obtained
Keywords: hard drives, forensic imaging
Labrier v. State Farm Fire & Cas. Co., No. 2:15-cv-04093-NKL, 2016 WL 2689513 (W.D. Mo. May 9, 2016)
Upon Defendant’s refusal to provide Plaintiff with a list of data fields from two proprietary databases or to allow remote access, the Special Master ordered Defendant to respond to written interrogatories meant to provide the information sought by Plaintiff regarding putative class members and damages. Addressing Defendant’s objection that the discovery (i.e., responding to written interrogatories) was not proportional to the case, the District Court determined that the Special Master had not abused his discretion, reasoning in part that “[a] litigant cannot keep its own system secret and then refuse to gather the information itself.”
Key Insight: Predictive coding may be used to conserve time and expense where e-discovery expertise applied
Nature of Case: Embezzlement/Fraudulent Transfers Action
Electronic Data Involved: Backup storage tapes of exchange server containing tax-related information
Keywords: “computer-assisted review [tools]” “privileged or confidential information” “universe of documents”
Key Insight: Absent a search warrant, the Government may not turn a citizen’s cellphone into a tracking device.
Nature of Case: Drug Trafficking
Electronic Data Involved: cell site location information, cellphone location
Keywords: pings, cell phones, CSLI, cell site, pen register information
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