Key Insight: Court granted Motion to Compel and ordered plaintiff to provide all passwords, user names and log-in names for any and all MySpace of Facebook accounts
Nature of Case: Claims arising from injury at work
Electronic Data Involved: Social Network
Key Insight: Where video of defendant?s alleged assault was sent via email to an investigating officer but was automatically deleted by the email program, where the physical copy was ?faulty? and would not play, and where the original tape was destroyed, the court nonetheless found that defendant?s due process rights were not violated where ?the exculpatory value of the video was not apparent and the State did not act in bad faith?
Nature of Case: Assault (criminal)
Electronic Data Involved: Surveillance video
Key Insight: Court granted in part motion to quash subpoena seeking forensic investigation of non-party?s personal computer and ordered the subpoena be modified to allow a forensic investigator to search for the singular piece of evidence at issue and related metadata and to allow the non-party to be present and to bring her own expert to observe during the forensic examination, among other things
Nature of Case: Employment discrimination
Electronic Data Involved: Hard Drive
Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions
Nature of Case: Medical Malpractice
Electronic Data Involved: Medication Records
Key Insight: Court affirmed Magistrate Judge?s order requiring defendant to submit his computers for forensic examination, at his own expense, where defendant reinstalled an operating system less than two weeks after plaintiff filed a motion to compel and where, because of the loss of data, plaintiff was therefore prejudiced to an unknown extent?bad faith was not required for such an order; court affirmed order requiring corporate defendant to search hard drives of key employees, the image of a file and print server, and backup tapes dating back five years where the search was not overly broad and where defendant did not establish undue burden?despite its exorbitant estimate regarding backup tapes?in light of the large disparity between estimates from both parties, and where the court noted that much of the costs could have been avoided had SMS fulfilled its preservation duties and not converted to a less accessible format
Nature of Case: Employment litigation – sexual harassment
Electronic Data Involved: ESI
Key Insight: For ?discovery misconduct? including failing to issue a litigation hold; admitted deletion of documents; and failure to promptly search certain repositories for responsive information, including a computer utilized by an individual defendant at an unrelated corporation for which he was an officer (but which he used for matters unrelated to that corporation, including for correspondence related to the underlying lawsuits) and the computer of the same individual?s secretary (albeit at yet a third company which was also a defendant), the court ordered monetary sanctions ?to reimburse Plaintiff?s expenses costs, and reasonable attorney?s fees?
Nature of Case: Bankruptcy
Electronic Data Involved: ESI
Key Insight: Affirming the order of the magistrate judge, the Court found that Rule 34 production requirements applied equally to hard copy and ESI, that the Case Management Order did not exempt the parties from the requirements of Rule 34, and that where defendants did not produce ESI as maintained in the usual course of business, they would be required to label their productions to correspond to the categories in the request, or, as offered by plaintiff, could re-produce ESI in native format in lieu of labeling
Nature of Case: CERCLA, RCRA – seeking cleanup costs from owner of property formerly used as ammunition storage
Electronic Data Involved: ESI
Key Insight: Addressing defendant?s motion for sanctions, the court found that defendant?s CEO and outside counsel ?should have done more to ensure that relevant evidence was preserved? and that defendant had been prejudiced where certain documents had been lost due to plaintiff?s reliance on a verbal ?100 percent document retention policy? (i.e. the company deleted nothing) and because of plaintiff?s failure to inform its accountants of the need to preserve, but declined to impose drastic sanctions and ordered that the jury be informed of plaintiff?s failure to preserve certain relevant information
Nature of Case: Allegations of anticompetitive acts
Electronic Data Involved: ESI
Key Insight: Conviction reversed and case remanded where trial court abused its discretion by admitting text messages found on the defendant?s cell phone without providing any evidence to establish that the defendant was the author of the at-issue messages, particularly where several messages referred to the defendant in the third person and ?and thus, were clearly not written by her?; court also found the text messages constituted inadmissible hearsay
Nature of Case: Drug conviction
Electronic Data Involved: Text messages
Key Insight: Where non-party OSU represented that responding to a subpoena seeking 6571 documents would require an expenditure of $1,761.24 and 55 hours of in-house counsel?s time, court found the burden was not so undue as to require protection from compliance and, in so finding, noted OSU?s financial interest in the outcome of the litigation, OSU?s close ties to a party in the case, and the amount in controversy of the underlying litigation (many millions of dollars)
Electronic Data Involved: ESI
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