Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: No spoliation because no bad faith found when party did not retain records after selling assets (including computers)
Nature of Case: workplace discrimination, disability rights
Electronic Data Involved: unspecified electronic records
Keywords: Rule 37(e) ignored,
HCC Ins. Holdings, Inc. v. Flowers, No. 1:15-cv-3262-WSD, 2017 WL 393732 (N.D. Ga. Jan. 30, 2017)
In this case, the court declined to impose spoliation sanctions, despite Defendant and her husband’s “troubling” behavior, where Plaintiff failed to “present evidence to cast significant doubt” on the explanations for the at-issue behavior and failed to establish that the at-issue information—namely Plaintiff’s trade secrets and confidential information—had ever been “resident” on Defendant’s personal computer or otherwise in her control.
Key Insight: Sanctions not found because VHS degrades naturally and missing reports were not proven relevant
Nature of Case: false arrest
Electronic Data Involved: video VHS, lost original tape, paper documents
Keywords: 37(e) ignored, lost original tape, missing reports, culpable state of mind
Key Insight: Even if documents are recovered from deletion, sanctions may still be proper, sanctions are proper when failing to adhere to litigation holds, sanctions based on perjury are not criminal charges of perjury, extreme bad-faith litigation allows for cost shifting of attorney’s fees
Nature of Case: Litigation misconduct
Electronic Data Involved: Electronic files
Keywords: 7 million, sanctions, unusually deplorable, perjury, bizarre, rat droppings
Identified State Rule(s): “American Rule”
Key Insight: Waiver of privilege for documents inadvertently posted to publicly accessible Box.com location
Nature of Case: insurance coverage litigation
Electronic Data Involved: Box.com uploads
Keywords: Box.com, privilege waiver, publicly accessible, account permissions, file sharing
Identified State Rule(s): Va. Sup. Ct. R. 4.1(b)(6)(ii)
Identified Federal Rule(s): FRE 502(b)
Key Insight: whether long term care facility must provide clinical records of injury subsequently provided to Quality Assurance Comittee
Nature of Case: personal injury
Electronic Data Involved: Investigative records
Keywords: privileged, Quality Assurance Act
Key Insight: Predictive coding models are legitimate, and document review can stop when the burden outweighs the benefits.
Nature of Case: wage and hour class action
Electronic Data Involved: archived email
Keywords: privilege log, predictive coding,
Key Insight: Court ruled that it could not be inferred from mere negligence that the recording would be favorable to defendants. Other sources of information/discovery were available as well. An application of Rule 37(e) would make no difference (the rule was not cited).
Nature of Case: Civil rights
Electronic Data Involved: Deleted cell phone video
Keywords: spoliation, sanctions, adverse inference
Key Insight: Compelling ESI prematurely is not needed if the records will be preserved throughout litigation
Nature of Case: malicious prosecution
Electronic Data Involved: emails, documents
Keywords: Scope of ESI search terms, willingness to produce
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