Key Insight: Court found it ?more likely than not? that plaintiff?s fabrication of an exhibit was in bad faith and necessitated sanctions and ordered an evidentiary hearing where evidence revealed that plaintiff had significantly altered evidence and subsequently provided misleading information to opposing counsel and the court regarding the same
Electronic Data Involved: Fabricated evidence
Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?
Electronic Data Involved: Contents of personal computer, storage devices
Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?
Nature of Case: Slip and fall
Electronic Data Involved: Surveillance footage
Key Insight: Where video of defendant?s alleged destruction of evidence while in a holding cell was automatically recorded over pursuant to the department?s standard policy and was not preserved because none of the officers involved in the investigation realized the images from cameras in the cells were recorded (as opposed to merely ?stream[ed]? to allow observation), court found no bad faith and thus no violation of due process arising from destruction of ?potentially useful? evidence (as opposed to exculpatory evidence)
Nature of Case: Criminal (sex trafficking)
Electronic Data Involved: Video of defendant while in holding cell
Key Insight: Where willful, bad faith spoliation of relevant video tapes despite a duty to preserve (triggered by an internal complaint of harassment and receipt of two preservation requests from plaintiff) resulted in prejudice to the plaintiff, court ordered sanctions, including an adverse inference allowing (but not requiring) the jury to infer that certain tapes would have been harmful to defendant, an order precluding defendant from the introduction of certain evidence, and a prohibition on cross examination of plaintiff?s witnesses as to certain topics
Nature of Case: Racial discrimination
Electronic Data Involved: Video
Key Insight: Court found backup tapes not reasonably accessible in light of the cost of restoration, review and production but granted plaintiff?s motion to compel where plaintiff?s showed ?good cause for some discovery? and held the motion in abeyance until further argument on cost-shifting
Nature of Case: Products liability
Electronic Data Involved: Backup tapes
Key Insight: Despite the intentional deletion of ESI by defendant?s employee, court declined to impose evidentiary sanctions where there was no showing of prejudice (because the vast majority of deleted ESI was recovered); court also denied request for attorneys? costs and fees pursuant to its inherent authority or under Rule 37
Nature of Case: Putative Class Action alleging a product defect
Electronic Data Involved: Emails
Key Insight: Court denied plaintiff?s motion to compel production of email requiring restoration of backup tapes where defendant?s expert averred that it would cost over $270,000 and require hundreds of hours to accomplish, where plaintiff?s expert could not ?ascertain an estimate for the actual cost,? and where ?even if the actual cost of restoring the backup tapes was only a fraction? of the estimated amount, it ?would still outweigh the amount [Plaintiff] seeks to recover?
Nature of Case: Violation of FMLA
Electronic Data Involved: Emails on backup tapes
Key Insight: Where, prior to being named a party to the action, defendant failed to preserve ESI (including failing to pay a vendor for imaging her hard drive, which resulted in the vendor’s destruction of the image) despite the receipt of two subpoenas, where the court found the spoliation to be at least willful, and where the circumstances surrounding the spoliation permitted an inference that the information destroyed was highly relevant to the litigation, court found an entry of default was appropriate and set a hearing to determine the appropriate damages
Nature of Case: Tortious interference with a contract, breach of contract, defamation, etc. arising from anonymous emails sent to several parties
Electronic Data Involved: ESI, hard drive
Key Insight: Despite noting that it was ?undisputed? that plaintiffs? witnesses did not modify their practice of ?deleting most emails within a short time of receiving them? even after they reasonably anticipated litigation, the court declined to impose an adverse inference where the record supported a finding that the witnesses ?destroyed the emails in the ordinary course of business unmotivated by any bad faith.?
Nature of Case: Fraudulent inducement, breach of fiduciary duty
Electronic Data Involved: Emails
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