Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others
Electronic Data Involved: ESI
Key Insight: Court denied BP?s motion for spoliation sanctions for Halliburton?s alleged loss of information concerning ?post incident cement testing? where BP had not demonstrated prejudice and, upon Halliburton?s representation that the modeling was done on a particular computer that it would submit for third-party forensic examination to determine if the modeling could be located, the court ordered the parties to meet and confer to develop a protocol for examination with costs to be shared equally and reserved BP?s right to seek additional relief
Nature of Case: Claims arising from oil spill
Electronic Data Involved: Computer modeling data/results
Key Insight: Where relevant documents were discovered upon forensic examination of a relevant hard drive and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute Defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs’ motion for spoliation sanctions
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Key Insight: Court found plaintiff had violated a court order compelling production of responsive materials, as evidenced by the production of additional responsive documents from other witnesses and by plaintiff?s agent?s inability to relate his process for identifying and collecting responsive information, but declined to order the case dismissed and instead ordered plaintiff to ?once again respond to each discovery request? and outlined what information should be tracked with regard to those efforts
Nature of Case: Claims concerning the purchase of several collateralized debt obligations (CDO’S) by the plaintiffs which resulted in a substantial loss as a result of the credit ratings downgrades in the market
Electronic Data Involved: ESI
Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence
Nature of Case: Patent Infringement
Electronic Data Involved: All discovery
Key Insight: Court denied motion for electronic discovery costs pursuant to Fed. R. Civ. P. 54(d) and 28 USC 1920 where Defendant?s bill of costs included many line item descriptions for ?intellectual effort? such as ?analyzing the discovery documents,? preparing for and participating in a ?kickoff call? and other communications with co-workers and vendors
Nature of Case: Patent and Copyright infringement
Electronic Data Involved: Taxable costs related to electronic discovery
Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.
Nature of Case: Declaratory judgment that contract was invalid because procured by fraud
Electronic Data Involved: Laptop
Key Insight: Court denied motion for expedited discovery to Paypal Inc purportedly intended to determine the identity of an alleged copyright infringer where plaintiff failed to sustain their burden of making a clear and specific showing of good cause and sufficient reason why there motion was necessary, including because plaintiff failed to assert that Doe defendant lived in the relevant judicial district, because plaintiff failed to establish that they exhausted traditional avenues of identification and because the subpoena was overly broad, among other reasons
Nature of Case: Copyright infringement
Electronic Data Involved: Identifying information from internet service provider (ISP)
Key Insight: Appellate court found that trial court did not err in failing to grant Plaintiff?s request for an adverse presumption for insurance company?s failure to preserve a relevant file that was instead purged pursuant to the company?s document retention policy where Plaintiff provided no evidence of fraudulent conduct or intentional destruction; court further noted that Plaintiff failed to explain how the failure to provide an adverse inference (a lesser sanction than an adverse presumption) altered the court?s ?summary disposition analysis? reasoning that the court was already required to consider the evidence in the light most favorable to the non-moving party
Nature of Case: Claims arising from a slip and fall involving questions related to insurance coverage
Electronic Data Involved: Underwriting file
Key Insight: Where plaintiff sought sanctions for defendant?s automatic purge of contents from a relevant website following closure of bidding process, court found defendant was on notice of obligation to preserve by virtue of Federal Acquisition Regulations requiring preservation of ?all the contract documents associated with procurement,? that the United States had been negligent in failing to preserve the information, and that plaintiff was prejudiced and, focusing on the need to impose the least harsh sanction, ordered that defendant would be prohibited from relying upon any secondary evidence regarding what Plaintiff saw on the relevant website (the question of what Plaintiff saw on the website and therefore what Plaintiff knew was a major issue in the case)
Nature of Case: Pre-award bid protest
Electronic Data Involved: Contents of website used to submit bids
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