Key Insight: Court granted motion for sanctions and imposed permissive adverse inferences as to two categories of information which the court found had been intentionally shredded and/or deleted despite a duty to preserve
Nature of Case: Civil rights class action
Electronic Data Involved: Emails, ESI
Key Insight: Where parties failed to meet and confer Pursuant to Rule 26(f) and thus failed to agree on format of production, and where plaintiff?s production was not in the format maintained in the usual course of business or organized and labeled according to the categories in the discovery requests, court ordered re-production of plaintiff?s ESI in a format agreed upon by the parties
Electronic Data Involved: ESI
Key Insight: Court found reasonable expectation of privacy existed as to cumulative cell-site-location records such that they were protected by the Fourth Amendment and denied the Government?s motion pursuant to 18 U.S.C. ? 2703(c)(1) and (d) which sought two orders directing Verizon Wireless to disclose the cell-site-location records pursuant to the Stored Communications Act
Electronic Data Involved: Cell-site-location records
Key Insight: Where defendant produced privileged emails and sought to preclude waiver arising therefrom, the court rejected defendant?s assertions that it did not intend to waive privilege and, noting the lack of evidence regarding reasonable steps to prevent disclosure and that defendant had not yet requested the return of the documents at issue, found that privilege had been waived
Nature of Case: Employement litigation
Electronic Data Involved: Privileged emails
Key Insight: Plaintiff?s motion for leave to take immediate discovery to obtain information sufficient to identify Does 1-59 (by serving subpoenas upon their internet service providers and cable providers) was granted where plaintiff identified the missing parties with sufficient specificity to allow the court to determine that the parties could be sued in federal court, where there were no other means by which plaintiff could obtain the information sought, and where plaintiff?s action could withstand a motion to dismiss
Nature of Case: Unlawful access to stored communications and copyright infringement
Electronic Data Involved: Name of subscriber
Key Insight: Court denied motion for sanctions for alleged spoliation of one email where plaintiff failed to establish that the ?destruction of the email was anything but inadvertent or that any other email was deleted? or that the email constituted relevant evidence favorable to the defendants; court?s opinion indicated that defendants? use of oral instruction to preserve evidence was acceptable; court denied motion for sanctions related to defendants? failure to preserve and produce all runtime environments for allegedly infringing software program where defendants took efforts to preserve similar evidence with the belief that such preservation was sufficient and thus did not have a sufficiently capable state of mind to establish spoliation and where plaintiff failed to establish the relevance of the allegedly spoliated evidence to its claims
Nature of Case: Copyright infringement
Electronic Data Involved: Email, computer files related to development of allegedly infringing software
Key Insight: Court denied motion to compel Yahoo! and Google to produce emails in violation of Stored Communications Act and declined to rely upon defendant?s ?status as a fugitive? to find that she was deemed to have given consent or to issue an order requiring consent which, if defied, would allow the implication that consent had been given where the court reasoned that ?there is nothing in [defendant?s] actions from which this court can imply an intent to consent to the disclosure of her information
Nature of Case: Child abduction
Electronic Data Involved: Web-based email
Key Insight: Court granted motion for expedited discovery to issue subpoenas to relevant ISPs seeking information sufficient to identify Doe defendants
Nature of Case: Copyright infringement
Electronic Data Involved: Identifying information from ISP
Key Insight: Where plaintiff failed to timely produce relevant evidence despite two court orders and then wrongly certified that the production was complete, the district court granted defendant?s motion to dismiss; on appeal, the circuit court affirmed the sanction (in a colorful opinion full of quotable quotes), holding that ?no one . . . should count on more than three chances to make good on a discovery obligation? and that the district court was within its considerable discretion in granting dismissal
Nature of Case: Breach of contract
Electronic Data Involved: Tax records
Key Insight: Addressing the obligation of a non-party to produce ESI that was deleted through ?normal business operations?, the court found that the Naussau Guidelines provided the best approach to determine the third party?s obligation to produce allegedly inaccessible data where the guidelines called for a cost/benefit analysis involving the difficulty of the production at issue; court found plaintiff had shown ?good cause? for needing the requested ESI but that there was insufficient evidence of the non-party?s alleged burden of production (including, for example, whether the at-issue ESI had actually been deleted, whether it could actually be retrieved, the cost of such retrieval, etc.) and thus remanded the case to the Supreme Court for ?a hearing on whether the information plaintiff seeks is ?inaccessible? and hence whether [the non-party] has the ability to comply with the subpoena; the appellate court reversed the Supreme Court?s ruling holding the non-party in contempt for failure to comply with a judicial subpoena
Nature of Case: Defamation
Electronic Data Involved: Identity of all persons who accessed the internet using a certain computer or internet portal on a certain day
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