Key Insight: sanctions not appropriate for deletion of original recordings, no alteration of originals
Nature of Case: Termination of employment
Electronic Data Involved: audio recordings, transcripts, photographs
Keywords: deletion of original, termination of employment, Best evidence rule
Key Insight: Discovery had been completed in September 2016. In February 2017, at deposition, additional on-going claims were presented. Court specified search terms to use against 3 custodians for the additional time frame.
Nature of Case: American with Disabilities; Employment Discrimination
Electronic Data Involved: E-mail
Keywords: Search Terms, Supplemental Production; Additional Discovery
FCA USA LLC v. Cummins, LLC, No. 16-12883 (E.D. Mich. Mar. 28, 2017)
In this case, the court was asked to rule on the parties’ dispute regarding “whether the universe of electronic material subject to TAR review should first be culled by the use of search terms.” The court, although expressly reluctant to get involved, concluded that it should not:
Be that as it may, having reviewed the letters and proposed orders together with some technical in-house assistance including a read of The Sedona Conference TAR Case Law Primer, 18 Sedona Con. J. __ (forthcoming 2017), the Court is satisfied that FCA has the better postion [sic]. Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method. The TAR results can then be culled by the use of search terms or other methods.
A full copy of the court’s short order is available here.
Key Insight: Contract was not ambiguous so extrinsic evidence not admissable. Therefore discovery of file was not proportional or calculated to lead to admissable evidence.
Nature of Case: declaratory judgment and bad faith
Electronic Data Involved: underwriters claim file
Keywords: admissability; proportionality; extrinsic evidence
Key Insight: Defendant had reviewed video recording twice and did not show area of spill and fall. Deleted recording per their normal 37 day video retention policy. Defendant moved for summary judgment, Plaintiff argued should be sanctioned by not granting order. Judge granted summary judgment.
Nature of Case: Personal Injury
Electronic Data Involved: Video Recording
Keywords: Summary Judgment; Retention Policy
Key Insight: To what extent can a party be punished for spoliation under Rule 37(e)? How much does state of mind at the time of spoliation affect the sanction?
Nature of Case: Legal malpractice
Electronic Data Involved: e-mails, electronically-stored records
Keywords: Spoliation sanctions, innocence
Key Insight: Limiting the scope of discovery requests for full social media account history
Nature of Case: personal injury
Electronic Data Involved: Facebook account history
Keywords: social media, Facebook, proportionality, burdensome discovery
Williams v. Angie’s List, No. 1:16-00878-WTL-MJD, 2017 WL 1318419 (S.D. Ind. April 10, 2017)
Plaintiffs in this case—48 current and former employees of Defendant—alleged they were entitled to “substantial compensation” for hours worked without pay. Plaintiffs further alleged that Defendant’s computerized time records did not entirely reflect their hours worked because Defendant had instructed them to underreport their overtime hours and because many of those hours were worked from home. Plaintiffs therefore sought production of “background data” automatically recorded while they were working on Defendant’s sales platform, Salesforce, in an effort to “close the gaps” in other records. Defendant produced one year’s worth of the requested data, but refused to produce the additional two years sought by Plaintiffs arguing that the information was maintained by Salesforce, “a third-party provider of services,” and that Defendant had “no greater rights” to the data “than any other person.” Defendant also noted the $15,000 invoice it received from Salesforce related to the initial production, which it claimed supported its position that it did not have possession, custody or control of the information. Ultimately, the court granted Plaintiffs’ motion to compel and denied Defendant’s motion to shift costs.
Key Insight: Sanctions for spoliation of evidence resulting from good faith destruction of cell phone
Nature of Case: labor violations
Electronic Data Involved: text messages
Keywords: spoliation, smartphone, intent to deprive
Key Insight: Disclosing legal advice to third parties that need to know via email maintains attorney client privilege
Nature of Case: class action
Electronic Data Involved: archived email
Keywords: timeliness, third parties need to know, attorney client privilege
Identified State Rule(s): Ca. Evidence Code 952
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