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
Key Insight: For defendant?s employees? intentional spoliation, including use of scrubbing software and destruction of CD-ROMS, court imposed default judgment against the employees but declined to impose sanctions on defendant corporation where questions of fact remained as to whether it engaged in spoliation
Nature of Case: Violations of Computer Fraud and Abuse Act and PA Uniform Trade Secrets Act
Electronic Data Involved: ESI
Key Insight: Where the general manager of the defendant Red Roof Inn claimed to have attempted to preserve video surveillance footage by asking for it to be copied but alleged that she later discovered that the footage was not copied and that the original footage had been automatically recorded over by that time, the court found, ?based on overwhelming evidence of Red Roof?s cavalier attitude toward its discovery obligations,? that defendant?s spoliation was grossly negligent and ordered an adverse inference and that defendant pay plaintiff?s reasonable attorneys? fees and costs associated with the preparation for the motion for sanctions
Nature of Case: Unlawful detention and related claims
Electronic Data Involved: Surveillance footage
Key Insight: Plaintiff argued that Department of Justice had destroyed records in violation of Federal Records Act but court clarified that Federal Records Act rather requires agencies to decide which materials must be preserved and reasoned that where DOJ decided not to require preservation of notes related to employment candidates and thus such information was destroyed, no spoliation could be found where the destruction was in accordance with policy and occurred prior to initiation of the relevant investigation and the subsequent lawsuit
Nature of Case: Claims alleging wrongful employment decisions based on political affiliation
Electronic Data Involved: Notes taken regarding applicants
Key Insight: Court found that relevant social media content was discoverable but declined to compel plaintiff to produce her login and password or her entire Facebook history (using the ?Download your own information? feature) and ordered plaintiff?s counsel to review plaintiff?s social media content for a period beginning in 2005 to identify information relevant to the categories identified by the court
Nature of Case: Employment discrimination, failure to accomodate
Electronic Data Involved: Social media content
Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint
Electronic Data Involved: Emails, ESI
Key Insight: In this case, the Ninth Circuit affirmed the decision of the District Court that the Electronic Communications Privacy Act (ECPA) applies to foreign citizens and thus precluded Microsoft Corporation from producing a foreign citizen?s emails, which were stored on its server.
Electronic Data Involved: Emails stored on domestic server
Key Insight: Where defendant, ?a small company with 13 employees? who presented evidence that it was not profitable, objected to discovery pursuant to 26(b)(2)(C)(iii) based on an estimated cost of $2,630 to comply with plaintiff?s request (which included, in part, the cost of necessary software to complete the review), the court declined to shift the cost of production but stated that defendant could choose to produce un-reviewed ESI to plaintiff, thus shifting the cost of software necessary for review, but if defendant wished to review the data first, it would bear the costs of doing so
Nature of Case: Sexual harassment
Electronic Data Involved: ESI
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