Key Insight: Court declined to impose spoliation sanctions absent evidence of bad faith
Nature of Case: Employment Discrimination
Electronic Data Involved: Investigation file, original medical records, “comments section” of medical records from computer system
Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case
Nature of Case: Breach of non-compete, misappropriation of trade secrets
Electronic Data Involved: ESI
Key Insight: Court found that ?Defendant?s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents raise[d] justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to Plaintiff?s discovery requests? and thus scheduled an evidentiary hearing and ordered Defendant to be prepared to present evidence on its preservation and search efforts (specific topics identified in court?s order)
Nature of Case: Employment discrimination
Electronic Data Involved: Miscellaneous ESI
Key Insight: Court ordered adoption of parties? proposed order concerning the management of electronic discovery which contained ?some but not all? of the provision of the [Model] Order drafted by the Federal Circuit and indicated its additional consideration of the [Model] Order adopted by the E.D. Texas
Electronic Data Involved: ESI
Key Insight: Court held that ?a requesting party must demonstrate that the other party has committed a history of discovery violations to the extent that the court finds it necessary to order the invasion of privacy attendant to forensic imaging? and also identified an appropriate forensic imaging protocol; judgment ordering forensic imaging of defendant?s computer was reversed and remanded
Nature of Case: Private Nuisance
Electronic Data Involved: Forensic image of defendants’ computer
Key Insight: Court found inadvertent production of partially privileged email constituted waiver where, despite reasonable efforts to prevent production, defendants allowed questioning regarding the email at deposition and did not realize the email was privileged and request its return until months later (when preparing for a separate deposition) and thus ?did not act promptly to rectify the disclosure?
Nature of Case: FLSA
Electronic Data Involved: Privileged email
Key Insight: Court granted third party?s motion to quash a subpoena where the court determined the subpoena was unduly burdensome, particularly in light of the third party?s estimate that the cost of identifying the requested information could exceed $40,000?a significant sum for a non-profit museum; ?as important? as the analysis of undue burden was the fact that plaintiff sought the requested information only from third party sources rather than from defendants which the court found ?only exacerbate[ed] the burden?
Nature of Case: Defamation and tortious interference
Electronic Data Involved: ESI
Key Insight: For egregious spoliation, including intentional deletions by key custodians, plaintiff?s failure to investigate storage practices or to ensure preservation, several custodians? failure to suspend auto-delete functions associated with their files, failure to suspend destruction of backup tapes, and replacement of relevant servers, the court ordered dismissal of plaintiff?s claims
Nature of Case: Legal malpractice
Electronic Data Involved: ESI
Key Insight: Where defendants? mistake in searching resulted in the failure to produce relevant documents and where plaintiff alleged that those documents would have established numerosity for purposes of his motion to certify (and where the motion was denied without them), court found that the mistake was not willful or in bad faith and that there was no prejudice where plaintiff was free to re-file his motion and thus, as a sanction, awarded limited attorneys? fees incurred as the result of defendants? mistake and noted plaintiff?s failure to timely review the documents produced by defendants, which may have alerted him to the problems prior to filing his motion for class certification
Nature of Case: Class action
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff?s motion seeking reversal of Clerk?s entry of bill of costs and specifically found that costs related to ?OCR capture? which the court acknowledged was a ?form of electronic discovery? were recoverable and that the OCR capture in this case was a necessary party of the discovery process
Nature of Case: Violation of FLSA
Electronic Data Involved: Costs related to electronic discovery
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