Key Insight: Court declined to compel re-production of data in native format where no form of production was requested and where the producing non-party had already produced responsive information in hard copy
Nature of Case: debt collection
Electronic Data Involved: ESI
Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files
Nature of Case: Fraud and related claims
Electronic Data Involved: ESI
Key Insight: Trial court did not err in admitting into evidence Verizon Wireless text message records reflecting text messages sent by and between shooter?s cell phone and defendant?s cell phone, as such records constituted “originals” or “duplicate originals” for purposes of the best evidence rule, and there was sufficient foundation for the records? admission under the business records exception to the hearsay rule as reliability of records was established through testimony of the custodian of records for Verizon Wireless that the records were accurate, they were made in the regular course of business, they were relied upon by Verizon Wireless in the transaction of business, and they were made contemporaneously with the creation of the text messages themselves
Nature of Case: Defendant was found guilty of murder, attempted robbery and other crimes
Electronic Data Involved: Text messages
Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue
Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies
Electronic Data Involved: Emails and documents
Key Insight: Where Defendant presented evidence that the cost of retrieving the requested information?not including the cost of attorney review or the time spent coordinating the production–was equal to the amount in controversy, the court concluded that the requests at issue were unduly burdensome and found that even where Plaintiff had explained the relevancy of the information sought, ?the expense associated with responding ? [was] too great when weighed against what is at stake in the litigation?; court?s analysis included consideration of inaccessibility based on the costs of production and noted that other discovery was available
Electronic Data Involved: ESI
Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents
Electronic Data Involved: Email
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: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn
Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business
Electronic Data Involved: Text messages
Key Insight: Where an employee of Defendant first denied he kept a calendar and then testified that he kept a daily electronic calendar but routinely deleted information after a day had passed and that he had continued such deletions even after being told that the entries were sought by the plaintiff in discovery, the court found that Defendant was culpable for the employee?s actions and for its own failure to notify its employees of the duty to preserve and imposed sanctions including an adverse inference, preclusion of the use of certain evidence, and monetary sanctions equal to double the amount incurred for preparation of the sanctions motion
Nature of Case: Wrongful termination
Electronic Data Involved: Calendar entries
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