Key Insight: Can discovery be given an expedited time table in order to precede a preliminary injunction hearing? Is it proportional?
Nature of Case: Legislation on violations of the Securities and Exchange Act of 1934
Electronic Data Involved: Depositions and documents (defined very broadly)
Keywords: Preliminary injunction, expedited discovery, proportionality, unduly burdensome
Key Insight: Discovery of these things was blocked, since they were ruled to be only marginally relevant compared to the time and expense it would take to produce them.
Nature of Case: Employment Discrimination
Electronic Data Involved: emails and text messages
Keywords: relevance, marginal relevance, time and expense
Key Insight: A program to parse relevant data from an existing database may trump usual course of business format
Nature of Case: Telephone Consumer Protection Act
Electronic Data Involved: Electronic list of wrong phone calls
Keywords: computer program, usual course of business,
Key Insight: Can the court order additional discovery if a party destroys evidence? Is a prejudice ruling required in a destruction of evidence case?
Nature of Case: Retaliation and discharge
Electronic Data Involved: text messages, emails, social media messages
Keywords: Prejudice, Destruction of evidence, Social media, Text messages
Key Insight: defendant ordered to produce Salesforce “background data” without cost shifting
Nature of Case: wage and hour
Electronic Data Involved: salesforce “background data”
Keywords: background data; cost shifting; gap in records
Key Insight: Plaintiff objected to discovery requests and added that it was withholding documents pursuant to this objection . Judge suggested a clearer response would have been preferred, but denied motion to compel.
Nature of Case: State Statute Constitutionality
Electronic Data Involved: ESI – Communications and Documents
Keywords: Objection; Withhold
Hsueh v. N.Y. State Dep’t of Fin. Servs., No. 15 Civ. 3401 (PAC), 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)
In this case arising from claims of sexual harassment at work, the court found that an adverse inference was the appropriate remedy for Plaintiff’s deletion of a recorded conversation with an HR representative. In the course of its analysis, the court agreed with Defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording” and thus relied upon inherent authority to impose sanctions.
The Sedona Conference has published revisions to its foundational Sedona Principles, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. As stated in the preface, the Third Edition was “necessitated by an even greater explosion in the volume and diversity of forms of electronically stored information, the constant evolution of technology applied to eDiscovery, and by further amendments to the Federal Rules of Civil Procedure” as well as by many years of experience in e-discovery. Thus, “[t]he Third Edition has been thoroughly updated to take into account evolving views on electronic discovery over the past decade, based upon the collective experiences of the WG1 membership in facing the myriad of practical issues that are influencing the development of the law in this area, the numerous important court decisions across the country, and, of course, the 2015 amendments to the Federal Rules [of] Civil Procedure.”
Interested parties are invited to “join the dialogue and expand the consensus” around the revised principles and may provide comments to the drafting committee until June 30, 2017.
The Sedona Principles, Third Edition is available for download, here.
Key Insight: no intentional destruction of evidence, mere negligence in not maintaining record of accidents in Qualcomm/PeopleNet
Nature of Case: negligence, loss of consortium, punitive damages
Electronic Data Involved: Qualcomm data, PeopleNet server data
Keywords: Spoliation
Key Insight: Court said 37(e) doesn’t apply when recording was intentionally deleted. Adverse inference granted for plaintiff’s deletion of an audio tape, despite its subsequent recovery and production from a hard drive backup.
Nature of Case: sexual harassment at work
Electronic Data Involved: audio tape, hard drive backup
Keywords: adverse inference, over-preservation concerns
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