Key Insight: Court declined to consider printouts allegedly from the Internet Archive?s Wayback Machine where plaintiff failed to properly authenticate them by providing an affidavit from an employee of the Internet Archive to verify the pages
Nature of Case: Trademark Infringement
Electronic Data Involved: Print outs from Internet Archive’s Wayback Machine
Key Insight: Where as the result of a finding of willful spoliation the district court ordered an adverse inference that established Oracle?s CEO?s knowledge of any material facts that Plaintiffs were able to establish, but where plaintiffs were nonetheless defeated at summary judgment and thereafter appealed the order arguing that the inference should have been sufficient to defeat a challenge to the insufficiency of their prima facie case, the appellate court affirmed the holding of the district court noting that, ?in light of the enormous record developed in this case, the only conceivable benefit of Defendant?s spoliation was the possibility of disclaiming Ellison?s knowledge of any damaging facts underlying the purported fraud? and that the district court?s sanction was ?carefully fashioned to deny Defendants that benefit?
Nature of Case: Securities fraud
Electronic Data Involved: emaisl, ESI
Key Insight: Where defendant sought leave to serve a subpoena upon a public library seeking information related to plaintiff?s internet use to confirm his alleged job seeking activities, the court found the subpoena overly broad on its face and found that even a more limited subpoena would impose a burden and expense outweighed by the likely benefit; court found proposed subpoenas to internet job search sites (e.g. Monster) would result in an undue burden in light of the expansive definition of document, but that defendant would be allowed to serve the subpoenas if the list of ?definitions? was removed
Nature of Case: Violations of ADEA and ADA
Electronic Data Involved: ESI related to online job searches
Key Insight: Where defendant produced emails in ?approximate-date order,? the court ?agree[d] with Defendants? disjunctive reading of ?or? within Rule 34 that producing documents either in the method kept during the ordinary course of business or organized and labeled into categories corresponding with the request is sufficient to satisfy the rule? and denied plaintiff?s motion to compel re-production according to separate email accounts
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Where plaintiff failed to take steps to preserve potentially relevant documents until approximately three and one half years after the lawsuit was initiated and was thus grossly negligent, the court granted an adverse inference and monetary sanctions equal to defendant?s reasonable fess and costs of making the motion for sanctions
Nature of Case: Suit alleging that drug companies had inflated average wholesale price for Medicaid drugs
Electronic Data Involved: ESI
Key Insight: Noting that “courts have held that Internet subscribers do not have an expectation of privacy in their subscriber information as they already have conveyed such information to their Internet Service Providers,” court denied motion to quash subpoena seeking identifying information from relevant ISPs
Nature of Case: Copyright infringement
Electronic Data Involved: Names and contact information for ISP subscribers
Key Insight: Court declined to stay discovery pending resolution of defendants? Motion to Dismiss, but ?to ensure that discovery [was] proportional to the specific circumstances of the case, and to secure the just, speedy, and inexpensive determination of this action,? ordered phased discovery and (citing the court?s Case Management Procedures, the Seventh Circuit Electronic Discovery Pilot Program, and the Sedona Conference Cooperation Proclamation) ordered that the parties cooperate to prepare a phased discovery schedule
Nature of Case: Defamation, tortuous interference with business and civil conspiracy arising from dispute over contents of dog-pedigree software
Electronic Data Involved: ESI
Key Insight: As sanction for plaintiff?s deliberate destruction of electronic documents in bad faith despite a duty to preserve triggered no later than his receipt of defendant?s affirmative defenses, court declined to order dismissal but ordered that plaintiff pay the attorneys fees and costs associated with defendant?s motion and the hiring of its forensics expert who established that spoliation had occurred; court denied motion to amend complaint to include cause of action for spoliation where ?such a claim is not cognizable under New York law?
Nature of Case: Disability discrimination, age discrimination, violations of FMLA
Electronic Data Involved: ESI, contents of computer
Key Insight: District Court declined to adopt recommendation for spoliation sanctions arising from defendant?s alleged bad faith destruction of a relevant email where the email was produced after the recommendation was made and thus ameliorated the need for finding of spoliation; in light of deficiencies revealed in defendants? search for responsive materials, court adopted recommendation that a forensic search of defendants? hard drives be undertaken, but reduced the scope of that search from all employees to those who ?received directly or indirectly, the customer information? at issue
Nature of Case: Claims arising from former employee?s alleged sharing of confidential information
Electronic Data Involved: Email
Key Insight: Case was reversed and remanded where trial court erred in admitting videotape that was admittedly altered as substantive evidence (as opposed to demonstrative evidence, for which the foundation would have been sufficient) where ?an adequate foundation must show that the original has been preserved without change, addition, or deletion and that, if a copy is introduced into evidence, there must be a cogent explanation of any copying such that the court is satisfied that during the copying process there were no changes, additions, or deletions.?
Nature of Case: Driving with revoked or suspended license
Electronic Data Involved: Videotape made by witness
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