Key Insight: argue that those requests and subpoenas are overly broad
Nature of Case: Motor vehicle accident negligence, personal injury
Electronic Data Involved: medical bills, records, and data for treatment received over a year before incident pertaining to rate of reimbursement
Keywords: subpoena, provider billing structure, medical billing and records, overly broad and burdensome
Key Insight: At the start of litigation, Plaintiff sent a preservation letter to Defendant(s). Subsequently, a Defendant requested Plaintiff produce records and screenshots of text messages from his phone for the month of the incident that was the basis of the litigation. Plaintiffs produced several screenshots of text messages, but was unable to provide the requested phone records. During a subsequent deposition, Plaintiff claimed that he still had the phone.
Additional Defendants subsequently requested a digital download of all information on the phone. However, in response Plaintiff claimed that he no longer possessed the phone. Defendants responded with a Motion for Terminating Sanctions on the basis of spoliation of evidence.
Utilizing a five-part test for imposing sanctions adopted by the Ninth Circuit, the Court found that none of the factors were in favor of sanctions in the litigation. Defendants’ Motion for Terminating Sanctions was denied.
Nature of Case: Personal Injury
Electronic Data Involved: Cell Phone Data, Cell Phone Data Image, Text Messages, Phone Records
Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so
Nature of Case: personal injury and liability
Electronic Data Involved: plaintiff’s cell phone and text messages
Keywords: spoliation, text messages, phone records, cell phone, preservation
Key Insight: third parties want the court to investigate all of the people that had access to discovery materials and assure that they are destroyed for fear of future litigation or political liability
Nature of Case: gerrymandering
Electronic Data Involved: discovery that had been produced
Keywords: preserving confidentiality of information, public accessibility
Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.
Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.
Nature of Case: Trademark Infringement, Breach of Contract
Electronic Data Involved: Email
Key Insight: Failure to produce; Sanctions; Proportionality
Nature of Case: Trademark & Copyright infringement
Electronic Data Involved: Hard copy; correspondence; email
Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;
Key Insight: Defendant had no duty to preserve the allegedly spoliated video for the almost two years before the filing of the lawsuit because there was no indication Plaintiffs intended to pursue litigation. Plaintiffs failed to present evidence indicating the allegedly spoliated video was relevant to this litigation which would trigger a duty to take reasonable steps to preserve it. No sanctions are warranted.
Nature of Case: Slip and Fall Liability, Personal Injury
Electronic Data Involved: Surveillance Video
Key Insight: spoliation of video evidence requested by plaintiff
Nature of Case: Slip and fall liability
Electronic Data Involved: Surveillance camera footage
Keywords: spoliation, surveillance, sanctions
Key Insight: whether the issue of spoliation could be brought before the jury to decide if evidence was withheld and if that was justified
Nature of Case: personal injury, motor vehicle
Electronic Data Involved: Log books of defendant
Keywords: spoliation, jury instruction, question of law/fact
Key Insight: two reports for different suits, written by the same expert. defendants in those cases subpoenaed each other’s report to get it without confidentiality restrictions
Nature of Case: intellectual property infringement
Electronic Data Involved: expert report deemed confidential
Keywords: subpoena, expert report, confidential, privilege, protective order
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