Key Insight: Where parties agreed to production of ESI in searchable form with metadata but Defendant produced TIFF images without metadata, court ordered re-production of ESI in accordance with parties’ agreement and amended the pretrial schedule
Electronic Data Involved: ESI and metadata
Key Insight: Where a non-party resisted production of requested information arguing that it could be more easily obtained from elsewhere and that production would impose an undue burden, including an estimated $38,00 in personnel costs alone, the court reasoned that there was no rule prohibiting Plaintiff from seeking documents from a non-party that were also likely to be in Defendant?s possession and, addressing the alleged burden, rejected arguments based on the documents? lack of organization (?less than optimal recordkeeping? did not rise to the level of ?undue burden?); where the requesting party offered to pay the costs of collection and review (by outside counsel), court rejected non-party?s privacy concerns in light of the protective order and recommended that if the non-party rejected the cost sharing offer, he should be required to pay for production himself; motion to quash denied
Electronic Data Involved: ESI
Key Insight: Court denied defendant?s motion to compel plaintiffs? production of printouts of all social media content where the court recognized that discovery of social network content has been allowed by other courts upon a showing that publically available information on those sites undermines the plaintiff?s claims and where no such showing was made in the present case
Nature of Case: Breach of insurance contract
Electronic Data Involved: Social Network Information: Facebook, MySpace, Twitter, etc.
Key Insight: Court found plaintiff had standing to challenge city?s subpoena to Verizon Wireless seeking ?any and all records? for Plaintiff?s cellular phone, including texts, instant messages, etc. and found that Verizon was prohibited from disclosing such content by the Federal Stored Communications Act; Verizon was also prohibited from disclosing non-content records where such disclosure to a ?governmental agency? is prohibited; court noted that alternative methods for discovery were available and specifically noted the availability of a Rule 34 request for production
Nature of Case: Claims arising from sexual assault
Electronic Data Involved: Cellular phone records, including content
Key Insight: Addressing Plaintiff?s fourth and fifth motions for sanctions resulting from the delayed production of relevant ESI for reasons ranging from alleged computer glitches to prior counsel?s failure to turn over highly relevant emails?and current counsel?s failure to timely discovery that those emails had previously been withheld?the court acknowledged current counsel?s efforts to rectify prior discovery abuses (addressed in prior sanctions motions) but nonetheless found that severe sanctions were warranted, including that defendant?s non-equitable counterclaims be stricken, that defendant pay the reasonable costs associated with the filing of the fourth and fifth motions for sanctions, that defendant or its counsel bear the cost of re-depositions (which they had previously offered to do), and that defendant pay a portion of the costs for plaintiff?s experts to supplement their reports
Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration
Electronic Data Involved: Misc. ESI
Key Insight: No sanctions for Defendant?s failure to produce a particular relevant email where the email was subject to Defendant?s automatic deletion policy and where the court ?was satisfied? that the email was in fact automatically deleted before Defendant was on notice that litigation was reasonably foreseeable
Nature of Case: Hostile Work Environment
Electronic Data Involved: Email subject to automatic deletion policy
Key Insight: Although court found that evidence compelled conclusion that debtor?s spoliation of electronic evidence, failure to preserve both ESI as well backup paper documentation, and failure to produce thumb drive was willful and intentional given the timing during imminent or ongoing litigation, court declined to impose a specific sanction against the debtor such as a default judgment and instead drew an adverse inference against debtor to the extent it impacted the debtor?s overall credibility; court ultimately found that plaintiffs? claim against the debtor for $39,296, stemming from judgment obtained by plaintiffs against debtor for breach of contract, was not dischargeable
Nature of Case: Complaint to determine dischargeability
Electronic Data Involved: Thumb drive containing financial information from 2009 through 2011
Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue
Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services
Electronic Data Involved: Thumb drive, email, spreadsheets
Key Insight: Circuit court pronounced prospective rule that a district court must issue explicit findings of bad faith and prejudice prior to delivering an adverse inference instruction but found district court?s failure to do so in the present case was harmless error and that the Defendant was not entitled to a new trial
Nature of Case: Breach of contract
Key Insight: Court declined to quash subpoena based on the burden of reviewing the requested emails prior to production where, because the request sought all messages to or from particular persons, the court determined that no review of the emails was necessary (that is to say, if the email was to or from one of the identified persons, it was responsive to the subpoena and thus subject to production regardless of content); because the movant was a non-party, however, the court indicated its inclination to set a reasonable cost of production, before production was complete, to prevent the responding party from manipulating production to increase the award and to streamline production and ordered the requesting party to pay the responding non-party $420.00 ?as reasonable compensation for compliance?
Electronic Data Involved: Emails
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