Key Insight: Adverse inference instruct sanction correct because party failed to preserve video evidence when overhauling system
Nature of Case: sip and fall, premises liability
Electronic Data Involved: video
Keywords: adverse inference instructions, culpable state of mind, destroying video
Key Insight: Intentional spoliation/persistent discovery misconduct can lead to sanctions well above the amount in dispute
Nature of Case: Intellectual Property (trademark infringement/counterfeit)
Electronic Data Involved: Electronic data
Keywords: Sanctions, proportionality, willfully, adverse inference
Key Insight: Extreme misconduct by defendant leads to recommendation of termination sanctions
Nature of Case: Civil rights violations (police excessive force)
Electronic Data Involved: Electronic records generally
Keywords: retrospect, contempt, sanctions, Agiwal factors, repeated and numerous violations,
Key Insight: relevance and proportionality
Nature of Case: false advertising
Electronic Data Involved: documents, communications
Keywords: relevant, proportional, reconsideration, additional discovery, custodial files, protective order, third party discovery
Key Insight: Defendants turned in employer owned/funded cell phones a month after litigation filed; was not spoilation and no sanctions given
Nature of Case: Civil Rights Violation
Electronic Data Involved: Cell Phone Records
Keywords: spoilation, duty of preservation
Key Insight: whether a permissive adverse inference instruction should be permitted; if so, whether spoliating party should be permitted to offer evidence to justify spoliation
Nature of Case: sexual harassment/abuse
Electronic Data Involved: hard copy
Keywords: permissive adverse inference, permitting spoliating party to explain, negligent failure to preserve
Key Insight: While shredded physical notes are not ESI, and thus not governed by FRCP 37(e), the court finds it a helpful rationale in deciding the proper course of action.
Nature of Case: Civil Rights
Electronic Data Involved: handwritten notes
Keywords: adverse inference, spoliation sanctions,
Key Insight: Boilerplate objections to discovery requests can lead to sanctions without being specifically tailored to the request
Nature of Case: Intellectual Property (patent and trademark infringement), breach of contract
Electronic Data Involved: Electronic data
Keywords: boilerplate, obstructionism, objections
Key Insight: Sanctions under 37(e) may be delayed until proof that the evidence is irretrievably lost is obtained
Nature of Case: Wrongful death
Electronic Data Involved: Video evidence
Keywords: Spoliation, video, adverse inference, recovery
Key Insight: Court narrowed scope of some plaintiff requests and ordered defendant to clarify privilege claims on withheld documents
Nature of Case: bad faith; insurance coverage
Electronic Data Involved: claims file of insurer
Keywords: privilege; responsiveness
Copyright © 2022, K&L Gates LLP. All Rights Reserved.