Key Insight: Parties reached agreement regarding the use of predictive coding for the production of electronically stored information (order dated july 27, 2012)
Nature of Case: Products Liability
Electronic Data Involved: ESI
Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed
Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims
Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts
Key Insight: Following evaluation of the relevant eight part test, court declined to shift the costs of producing emails stored on Defendant?s backup system pursuant to Rule 26(b)(2)(B) (inaccessible data) but placed limitations on the discovery allowed and ordered Defendant to restore eight weeks of backup tapes at its own expense and to search them for the requested emails and invited Plaintiff to renew its motion if, after Defendant?s search was complete, it could show that ?further exploration? was necessary
Nature of Case: Insurance Litigation
Electronic Data Involved: Emails stored on backup tapes
Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?
Nature of Case: Civil rights action (pro se prisoner)
Electronic Data Involved: [F]iles and records, including e-files and intact meta data
Key Insight: Where parties had each produced documents in text-searchable format for review in Concordance, and defendants made later, supplemental electronic productions in several ?massive? PDF files without any metadata and abruptly refused to follow prior practice, court granted plaintiff?s motion directing defendants to produce all documents in text-searchable format with necessary Concordance load files given that plaintiff?s initial document requests specified such format, defendants? initial production was made in accordance with those instructions without any objection, and sheer volume of documents at issue required production in an accessible format that allowed for easy sorting and searching
Nature of Case: Breach of contract
Electronic Data Involved: ESI and Concordance load files
Key Insight: Where government had requested production in specific electronic formats (Database, Access or Excel) but company produced materials in PDF format that lacked requested detail and was not searchable across multiple documents, court found production insufficient and noted that the fact that company’s databases lacked certain functionality did not relieve company from responding to subpoenas with responsive information in usable, searchable format and directed company to produce responsive information “in a format that is reasonably usable, which includes searchable, just as its databases are presumably designed to respond to search queries”
Nature of Case: Investigation by Office of the Inspector General re whether company violated the False Claims Act; government petitioned for summary enforcement of OIG supboenas to Capitol Supply, Inc.
Electronic Data Involved: Sales data, country-of-origin information
Key Insight: Trial court abused its discretion in ordering forensic imaging of defendants’ computer hard drives, as record did not demonstrate that documents plaintiff sought were being unlawfully withheld by defendants and not available from plaintiff’s own information or other sources, and in failing to set out an appropriate protocol to govern the forensic imaging process and protect defendants’ confidential information and preserve any private or privileged information
Nature of Case: Patent infringement, false advertising, misappropriation of trade secrets, breach of employment agreements
Electronic Data Involved: Computer hard drives
Key Insight: Appellate court upheld conviction for obstruction of justice based on deletion of email, where defendant admitted deleting email in response to being told about the execution of search warrants at a co-conspirator’s home and office, and there was evidence that defendant did more than simply delete emails but had also tampered with the drive from which the emails had been deleted
Nature of Case: Criminal case involving wire and mail fraud conspiracy and obstruction of justice convictions
Electronic Data Involved: Deleted email
Key Insight: Granting in part plaintiff’s motion for spoliation sanctions, court ruled that under the special circumstances of the case and notwithstanding that it was not a party to the litigation, Arizona Department of Corrections had duty to preserve the missing evidence, its failure to do so was at least grossly negligent, evidence was plainly relevant and plaintiff was clearly prejudiced by its loss; court declined to impose case-terminating sanctions against individual defendants but would allow parties to present evidence and argument about the lost evidence and would instruct jury that ADC had a duty to preserve evidence, ADC did not preserve the evidence, and jurors may infer that lost evidence would have been favorable to plaintiff
Nature of Case: Inmate alleged correctional officers used excessive force
Electronic Data Involved: Videotape of event, photograph of plaintiff’s hand, and other documentary evidence
Key Insight: Ruling on petition for writ of mandamus, state appellate court found that trial court did not abuse its discretion in denying defendants’ motion to compel: (1) production of plaintiff’s cell phone for forensic examination and data extraction (to retrieve stored and deleted photographs and videotapes depicting plaintiff subsequent to accident, stored and deleted text messages, emails and audio recordings referencing or reflecting plaintiff’s alleged depression, etc.) and (2) production of information, data, posts and conversations from plaintiff’s Facebook page, because the requests were not properly limited in time and scope, were overly broad and could have been more narrowly tailored, and constituted an unwarranted intrusion
Nature of Case: Personal injury claims stemming from motor vehicle accident
Electronic Data Involved: Data stored on plaintiff’s cell phone; and information, data, posts and conversations from plaintiff’s Facebook page
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