Key Insight: Attorney client privilege is not waived as an “at-issue” matter simply by filing a counterclaim
Nature of Case: Worker’s Compensation
Electronic Data Involved: All communications with monitoring counsel
Keywords: Privilege, at-issue waiver
Key Insight: Court used Flury test, not FRCP 37(e), found that lack of data was not the only source of the data and that plaintiff would not be prejudiced
Nature of Case: Personal injury
Electronic Data Involved: Computer records
Keywords: FedEx, Omnitracs, Flury
Key Insight: Documents produced on eve of deposition allowed for second deposition; text messages of employees not unduly burdensome; Financials in PDF form were OK assuming they were native format
Nature of Case: Fraudulent Inducement
Electronic Data Involved: Excel Spreadsheets/PDF; Text Messages
Keywords: incomplete production; native production; Proportionality
Key Insight: Plaintiff failed to show that he was prejudiced by the failure to preserve surveillance footage
Nature of Case: 1983 Civil rights
Electronic Data Involved: surveillance footage
Keywords: failure to preserve, prejudice, spoliation sanctions
Key Insight: Expenses responding to a subpoena also include fees spent on narrowing scope and litigation about the subpoena
Nature of Case: Discovery dispute
Keywords: Subpoena, reimbursement, third-party, cost shifting
Key Insight: proportionality, privacy
Nature of Case: labor dispute, class action
Electronic Data Involved: payroll records, electronic documents
Keywords: class action certification, relevance, overbroad
Key Insight: spoliation sanctions
Nature of Case: breach of contract
Electronic Data Involved: e-mails
Keywords: duty to preserve, automatic deletion, permissive spoliation instruction, intent to deprive, spoliation, 37(e)(2)
Key Insight: Plaintiffs said no responsive documents existed; deposition; Court awarded $25,000 of $45,000 in attorneys fees due to billing problems by defendant
Nature of Case: Statutory and Common Law Publicity Rights
Electronic Data Involved: E-Mail
Keywords: Sanctions; Timely Response; Privilege Log
Key Insight: spoliation, FRCP 37(e)
Nature of Case: Trademark infringement, unfair competition, breach of contract
Electronic Data Involved: hard copy, email, other ESI
Keywords: oral litigation hold, duty to preserve, destroyed paper files, sanctions, legal hold, sufficient procedures, bad faith, relevance, rule amendment, server migration, negligence, bad faith, gross negligence
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