Key Insight: Answering question of whether inadvertent disclosure of privileged information to testifying expert resulted in waiver of privilege, court ?conclude[ed] that a claim of inadvertent waiver cannot be used to withhold information from opposing counsel once it has found its way into the expert?s hands ? however unintentional that may be.?
Electronic Data Involved: Email
Key Insight: Court denied plaintiffs? motion to compel re-production of ESI in native format because the motion was untimely filed but went on to find that defendants? production of ESI in .PDF format was reasonable absent plaintiffs? request for production in native format and that compelling re-production would prejudice defendants where the metadata produced would likely necessitate additional expert involvement and discovery resulting in an adjustment to the case management schedule
Electronic Data Involved: ESI
Key Insight: Court quashed non-party subpoena upon finding it unduly burdensome where non-party estimated the cost of compliance in excess of $1,000,000 and argued that the information sought was irrelevant and cumulative of information available to the plaintiff from an alternative source
Electronic Data Involved: Stochastic modeling reports
Key Insight: Where production of defendants? general ledger was necessary because there was no suitable alternative to provide the information, but where defendants? counsel asserted that such production would require ?hundreds of hours? and involve great expense, court noted defendants failure to produce any details in support of its assertion and that plaintiff was willing to bear the reasonable costs and granted plaintiff?s motion to compel
Electronic Data Involved: General ledger in electronic format
Key Insight: Where evidence indicated that defendant had not produced all versions of its relevant source code despite a court order and had been untruthful as to its maintenance of certain records, court granted plaintiff?s motion to vacate its scheduling order and ordered defendant to take specific action, including 1) taking specific measures to ensure preservation of relevant evidence, 2) taking ?all reasonable measures to obtain from third parties?including past or present customers? evidence of its software development and version history, 3) identifying all computers on which anyone had engaged in software development since 2006 and all devices which ?ha[d] at any time contained? data reflecting such activity, and 4) producing all prior or current versions of software and source code for each relevant device, among other things
Nature of Case: Patent infringement
Electronic Data Involved: Source code
Key Insight: Court declined to grant spoliation sanctions for the destruction of metadata resulting from defendant?s continued use of his company-issued laptop where such use was not prohibited by the temporary restraining order and was not shown to destroy relevant evidence and where there was no evidence of defendant?s bad faith
Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract
Electronic Data Involved: Metadata
Key Insight: Where, upon en camera review, the court determined that counsel could not support his claim of privilege as to 55 emails and therefore sanctioned counsel $5000, appellate court affirmed the order and found the lower court had exercised proper discretion ?because [counsel?s] claim that the 55 e-mails were privileged was completely without merit in law and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.?
Nature of Case: Action to recover damages for breach of contract
Electronic Data Involved: Emails
Key Insight: Court declined to order adverse inference for the destruction of plaintiff?s wife?s (a non-party) camera and memory card and plaintiff?s resulting inability to provide the ?digital files? created when the relevant photographs were taken where ?the camera and memory stick [did] not appear to have ever been within plaintiff?s control? and where ?it [did] not appear that the camera and memory stick were suppressed or withheld, but rather both were destroyed in an accident? and thus the elements necessary for an adverse inference were not met
Nature of Case: Product liability
Electronic Data Involved: Digital files related to photographs alleged to be relevant to “the condition of the seatlbelt”
Key Insight: Where plaintiff purposefully arranged a conversation with the mayor, recorded the conversation, preserved the portion relevant to his lawsuit on his website server and then lost the remaining, irrelevant portion as the result of problems with his computer, court denied defendants? motion for spoliation sanctions where defendants failed to establish plaintiff?s bad faith or any prejudice resulting from the loss and where the court found plaintiff?s uncontroverted explanation for the loss ?reasonable and believable?
Nature of Case: Wrongful termination
Electronic Data Involved: Audio tape
Key Insight: In an order addressing several discovery disputes court ordered re-production of information downloaded from relevant Blackberry telephones where defendant produced the requested data in hard copy and where the information was not fully readable
Electronic Data Involved: ESI from Blackberry telephones
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