Key Insight: Showing threshold of compelling interest unnecessary before nonparty contact information is discoverable
Nature of Case: Wage and hour class action
Electronic Data Involved: nonparty contact information
Keywords: third party privacy, class action, percipient witness, discovery threshold, threshold requirement
Identified State Rule(s): Cal. Civ. Proc. 2017.010, 1017.020, 2030.300
Key Insight: Despite lack of sanctions due to the evidence being available in other ways, automatic deletion of emails is not best practice.
Nature of Case: Sexual harassment
Electronic Data Involved: Deleted Emails
Keywords: Automatic deletion, Susan Blood,
Key Insight: Production of non-responsive documents for re-review due to distrust may be cost shifted to opposing party
Nature of Case: Trade secret
Electronic Data Involved: Electronic documents
Keywords: fertilizer, trade secret, Nutra-Flo,
Key Insight: No spoliation when party removed URL link to software download because there was no bad faith and opponent already had software
Nature of Case: breach of contract, misappropriation of trade secrets
Electronic Data Involved: URL, software
Keywords: URL removal, software download, bad faith spoliation
Key Insight: the failure to implement a litigation hold is an important factor in determining culpability, ?but not per evidence of culpable conduct giving rise to a presumption of relevance and prejudice.?
Nature of Case: personal injury
Electronic Data Involved: destroyed records
Keywords: litigation hold; spoliation; adverse inference; likely to result in litigation
Key Insight: accessibility of data, whether counsel had meaningful discussions with his client regarding the ESI agreement, whether the meet-and-confer was meaningful
Nature of Case: employment discrimination
Electronic Data Involved: e-mail
Keywords: cost shifting, ESI agreement, meaningful negotiation, meet-and-confer, undue burden or expense
Key Insight: Spoliation of video evidence. Evidence must have existed and been in the control of a party.
Nature of Case: civil rights action
Electronic Data Involved: surveillance and taser video
Keywords: spoliation sanctions, multi-step analysis, Rule 37(e), routine retention policy.
Key Insight: whether sanction inappropriate absent bad faith
Nature of Case: personal injury
Electronic Data Involved: video footage
Keywords: surveillance footage, adverse inference, preservation letter, spoliation, Eleventh Circuit, prejudice, significant impairment, other available evidence
Key Insight: Courts have leeway for creative sanctions proportional to the spoliation (denying all evidentiary objections)
Nature of Case: Fraud
Electronic Data Involved: E-mails
Keywords: serendipity, CFTC, magistrate judge
Key Insight: Court used a spoliation test non-specific to electronic discovery, spoliation not found due to one defendant not in control of the evidence and the other destroying the evidence without bad faith and not when litigation was reasonably foreseeable
Nature of Case: Collision
Electronic Data Involved: ECM data
Keywords: ECM, electronic control module, spoliation
Copyright © 2022, K&L Gates LLP. All Rights Reserved.