Key Insight: Intentionally deleting ESI is different from failing to preserve and falls under a court’s inherent authority, not FRCP 37(e).
Nature of Case: Sexual harassment
Electronic Data Involved: Recorded conversation
Keywords: Spoliation sanctions, recording, DFS, department of financial services
Key Insight: whether production of a random sample is appropriate when full review unduly burdensome
Nature of Case: False Claims Act
Electronic Data Involved: patient records
Keywords: random sample, undue burden, statistical sample, prejudice, TAR
Key Insight: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Key Insight: Whether a determination of an inadvertent production of documents was erroneous or that the attorney didn’t follow reasonable steps to prevent disclosure.
Nature of Case: Personal Injury, insurance bad faith
Electronic Data Involved: Inadvertently produced documents, produced work product/ACP
Keywords: work product, inadvertent disclosure, claw back, reasonable steps to avoid disclosure
Key Insight: Spoliation sanctions for missing insurance photos premature before clarifying deposition from party
Nature of Case: insurance coverage litigation
Electronic Data Involved: photos
Keywords: amended declaration inadequate, IT protocol
Key Insight: plaintiff is seeking notices of litigation sent to co-insurers by defendant and defendant claims work product and privilege.
Nature of Case: MDL against drug companies for damages for allegedly contaminated blood products.
Electronic Data Involved: post-litigation communications with co-insurers and re-insurers.
Keywords: work product, privilege, notice to insurers, scope of coverage
Key Insight: 37(e) takes precedence over inherent authority in cases where it can be applied. Spoliation took place before there was anticipation of a trial.
Nature of Case: Defamation, tortious interference with contracts
Electronic Data Involved: e-mails
Keywords: Spoliation, inherent authority, 37(e)
Key Insight: Judge reluctantly agreed with plaintiff that TAR should be applied before keyword searches used to cull data set.
Nature of Case: Products Liability
Electronic Data Involved: ESI
Keywords: TAR; keyword; data cull
Key Insight: Sanctions under rule 37(e) must show actual prejudice, not merely theoretical.
Nature of Case: Wrongful death
Electronic Data Involved: Prison video
Keywords: Spoliation sanctions, actual prejudice, failure to preserve, adverse inference
Key Insight: ESI “willfully discarded or deleted”
Nature of Case: Alleged violations of the electronic Communications Privacy Act against defendants accused of stealing plaintiff’s clients and confidential information.
Electronic Data Involved: defendant’s iPhone, laptop and external hard drive
Keywords: adverse-inference instruction, forensic examination of a flash drive.
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