Key Insight: No spoliation when party removed URL link to software download because there was no bad faith and opponent already had software
Nature of Case: breach of contract, misappropriation of trade secrets
Electronic Data Involved: URL, software
Keywords: URL removal, software download, bad faith spoliation
A three-year pilot project studying “whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation” is now underway in the District of Arizona and the Northern District of Illinois. All civil cases in these jurisdictions, except those exempted by the program’s Standing Order, will be subject to the provisions of the program.
Key Insight: the failure to implement a litigation hold is an important factor in determining culpability, ?but not per evidence of culpable conduct giving rise to a presumption of relevance and prejudice.?
Nature of Case: personal injury
Electronic Data Involved: destroyed records
Keywords: litigation hold; spoliation; adverse inference; likely to result in litigation
Formal Opinion 749
In February, the NY County Lawyers Association Professional Ethics Committee issued Formal Opinion 749, addressing “[a] lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.” The committee summarized its detailed analysis as follows:
Key Insight: Spoliation of video evidence. Evidence must have existed and been in the control of a party.
Nature of Case: civil rights action
Electronic Data Involved: surveillance and taser video
Keywords: spoliation sanctions, multi-step analysis, Rule 37(e), routine retention policy.
Key Insight: accessibility of data, whether counsel had meaningful discussions with his client regarding the ESI agreement, whether the meet-and-confer was meaningful
Nature of Case: employment discrimination
Electronic Data Involved: e-mail
Keywords: cost shifting, ESI agreement, meaningful negotiation, meet-and-confer, undue burden or expense
Eshelman v. Puma Biotech., Inc., No. 7:16-CV-18-D, 2017 WL 2483800 (E.D.N.C. June 7, 2017)
In this case, the court denied Plaintiff’s motion for an order permitting a jury instruction regarding Defendant’s failure to preserve web browser history and related information for persons responsible for the preparation of an allegedly defamatory presentation where Plaintiff failed to establish that the lost information could not be restored or replaced through additional discovery or that the failure to preserve was prejudicial or intentional.
Key Insight: whether sanction inappropriate absent bad faith
Nature of Case: personal injury
Electronic Data Involved: video footage
Keywords: surveillance footage, adverse inference, preservation letter, spoliation, Eleventh Circuit, prejudice, significant impairment, other available evidence
Key Insight: Courts have leeway for creative sanctions proportional to the spoliation (denying all evidentiary objections)
Nature of Case: Fraud
Electronic Data Involved: E-mails
Keywords: serendipity, CFTC, magistrate judge
Key Insight: Court used a spoliation test non-specific to electronic discovery, spoliation not found due to one defendant not in control of the evidence and the other destroying the evidence without bad faith and not when litigation was reasonably foreseeable
Nature of Case: Collision
Electronic Data Involved: ECM data
Keywords: ECM, electronic control module, spoliation
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