S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)
Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)
Electronic Data Involved: ESI
Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)
Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs
Nature of Case: civil rights and employment law
Electronic Data Involved: ESI
Kilopass Tech., Inc. v. Sidense Corp., No. C-10-02066 SI, 2012 WL 1534065 (N.D. Cal. May 2, 2012)
Key Insight: Conducting waiver analysis pursuant to Fed. R. Evid. 502(b), court found that plaintiff?s efforts to preclude disclosure were not reasonable where plaintiff claimed the inadvertent disclosure was the result of mistakes on the party of the party, its counsel, and its vendor, including the client?s failure to provide names of all law firm with which it had worked, the vendor?s failure to run a privilege search on all production batches, and counsel?s failure to adequately review the documents identified for production before providing them to opposing counsel; court also relied on the large number of documents inadvertently produced?more than one in 50?reasoning, ?[t]he high proportion of privilege documents evidences a failure on Kilopass?s part to properly screen the documents.?
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Linnebur v. United Telephone Assoc., Inc., No. 10-1379-RDR, 2012 WL 2370110 (D. Kan. June 21, 2012)
Key Insight: Where Plaintiff was able to establish that defendant destroyed ESI while under a duty to preserve but was unable to establish that she was actually prejudiced by the loss, the court denied Plaintiff?s motion for sanctions without prejudice and, noting that it was ?troubled? by Defendant?s preservation failures and counsel?s apparent failure to oversee his client?s discovery efforts, the court sua sponte reopened discovery solely as to the issue of spoliation
Nature of Case: Unlawful termination under Age Discrimination in Employment Act
Electronic Data Involved: Email, ESI
Oyebade v. Boston Scientific Corp., No. 1:11-cv-0968-JMS-DML, 2012 WL 4020971 (S.D. Ind. Sept. 12, 2012)
Key Insight: For a ?pattern of discovery misconduct, including the spoliation of evidence? (an audio tape of a meeting with HR), the court imposed an adverse inference and ordered the jury be instructed that Plaintiff destroyed the audio recording ?under circumstances that suggest that the contents ? would not be helpful in proving his claims? and further ordered that Plaintiff would not be allowed to present evidence regarding the meeting with HR, that the jury be instructed to accept defendant?s evidence about the meeting, and that defendant was entitled to its attorneys fees and expenses incurred in seeking redress for the spoliation
Nature of Case: Employment discrimination
Electronic Data Involved: Audio tape of meeting with HR
State v. Fox, No. 11CA3302, 2012 WL 4946436 (Ohio Ct. App. Oct. 16, 2012)
Key Insight: ?[B]ecause appellant failed to show that the video contained materially exculpatory evidence or that the state acted in bad faith by failing to preserve the evidence, appellant did not demonstrate that his due process rights were violated. Thus, the trial court did not err by overruling his motion to dismiss.?
Nature of Case: Criminal: assault
Electronic Data Involved: Video surveillance footage
Silver v. Countrywide Home Loans, Inc., No. 11-12282, 2012 WL 2052949 (11th Cir. 2012)
Key Insight: Where defendant?s litigation specialist initially asserted that no responsive emails were uncovered but later testified that she had recently been told of a possible repository of archived emails and that search efforts there were ongoing and already had uncovered several relevant emails, Circuit court found no abuse of discretion in District Court?s refusal to impose an adverse inference which requires a showing of bad faith noting that the litigation specialist?s ?initial lack of knowledge? was ?carelessness at most? and further reasoning that the admission that relevant emails had been discovered was a further indication that the defendant was not acting in bad faith
Nature of Case: Fraud, breach of contract and similar claims related to plaintiff’s mortgage
Electronic Data Involved: Emails
Registe v. State, No. S12A1190, 2012 WL 5381248 (Ga. Nov. 5, 2012)
Key Insight: Court found cell phone provider?s voluntary release of non-content records was supported by good faith belief that there was an ongoing emergency where the company received information from the police that its records could help to identify an ?at-large suspect of a double homicide committed within a day of the request and that the suspect presented a present and immediate danger? and thus the release of records complied with the Stored Communications Act and a motion to suppress was properly denied
Nature of Case: Double murder
Electronic Data Involved: Cell Phone records
Beck v. Test Masters Educ. Servs., Inc., No. 04-1391(JDB), 2012 WL 10817176 (D.D.C. Sep. 25, 2012)
Key Insight: Defendant?s lackluster effort to retrieve e-mail after hard drives crashed constituted a conscious disregard of its preservation obligations that could fairly be described as gross negligence or recklessness, and warranted sanctions in the form of an adverse inference instruction; court declined to impose sanctions for defendant?s failure to preserve telephone recordings since there was insufficient evidence that any relevant calls were actually recorded and should have been preserved
Nature of Case: Consumer Protection Procedures Act claims
Electronic Data Involved: E-mails and telephone call recordings
State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)
Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation
Electronic Data Involved: ESI