Key Insight: Court quashed subpoena served upon Yahoo! for the production of emails from defendant?s account where the Stored Communications Act generally prohibits such disclosure absent a specifically-enumerated exception and where subpoena in a civil action is not such an exception
Nature of Case: Claims arising from prisoner’s death
Electronic Data Involved: Emails from defendant’s Yahoo! account
Key Insight: Court found that defendant had failed to ask all employees with potentially relevant documents to search for and produce them, that some employees who were asked to search had not complied, and that employees who had complied failed to search for documents in all possible locations and granted plaintiff?s motion to compel additional searching and production; court granted motion to compel defendants to provide a complete answer to an interrogatory seeking detailed information on steps taken to locate responsive materials and ordered defendant to ?certify that all employees with potentially responsive documents searched all locations where such documents are typically stored in paper or electronic format?
Nature of Case: Claims that defendant refused to provide necessary medical care or accommodate plaintiff’s disability
Electronic Data Involved: ESI, emails
Key Insight: Where plaintiff failed to take steps to preserve potentially relevant documents until approximately three and one half years after the lawsuit was initiated and was thus grossly negligent, the court granted an adverse inference and monetary sanctions equal to defendant?s reasonable fess and costs of making the motion for sanctions
Nature of Case: Suit alleging that drug companies had inflated average wholesale price for Medicaid drugs
Electronic Data Involved: ESI
Key Insight: Despite a prior agreement between plaintiff?s counsel and former defense counsel that parties would produce documents on disc or in hard copy, court ordered production of ESI in electronic format citing the ?halting nature of this action since it commenced, the questions that have come up regarding the sufficiency of Plaintiff?s production and efforts to identify responsive documents, and the absence of any showing that responding [to] Defendants? request for ESI would be unduly burdensome?
Nature of Case: Action to recover monies advanced
Electronic Data Involved: ESI
Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened
Electronic Data Involved: Inadvertently produced emails
Key Insight: Court granted motion to conduct pre-service discovery for the purpose of ascertaining the identity of the Doe defendants and, upon the parties agreement, ordered that a third-party expert conduct the discovery
Electronic Data Involved: Identity of Doe defendants
Key Insight: Where, following an order to produce an amended privilege and a warning that ?it would not be given another opportunity to establish privilege,? defendant?s amended privilege log still contained mistakes and where, in its attempt to correct those mistakes and clarify its claims of privilege, defendant then produced a sworn affidavit which once again failed to properly identify privileged emails vs. non-privileged attachments, court found defendant failed to establish privilege as to the documents in the affidavit and ordered them produced
Nature of Case: Contracts product liabilty
Electronic Data Involved: Privilege emails, email attachments
Key Insight: In class action for unpaid wages, court denied plaintiffs? motion for spoliation sanctions arising from defendants? admitted failure to preserve potentially relevant video surveillance tape where, because of the primary purpose of the surveillance cameras, i.e., deterring theft, the court could not conclude that defendants was obligated to immediately identify the footage as potentially relevant to plaintiffs? wage claims and preserve it and where, when plaintiffs? claims were filed, ?much of the footage? had already been destroyed pursuant to routine recycling of the surveillance tapes
Nature of Case: Action for unpaid wages
Electronic Data Involved: Video surveillance footage
Key Insight: Court found plaintiff primarily responsible for breakdown of discovery for failing to produce requested ESI or to provide satisfactory explanation of the problems precluding production but declined to order exclusion of all evidence supporting ?diminution in value? claim where plaintiff produced substantial financial information and produced the requested ESI in hard copy, where plaintiffs violated no court order, where the failure to produce was temporally limited to two ?short periods of time?, and where plaintiffs apparent ability to produce the requested ESI would prevent any prejudice; court gave defendant option of receiving ESI on ?searchable CD? or receiving the computer on which the ESI was stored for expert examination
Nature of Case: Adversary proceeding in bankruptcy
Electronic Data Involved: Financial data in electronic format
Key Insight: Where plaintiff failed to produce 15 emails (which were discovered in a productions from third parties), court declined to find that plaintiff had waived its objections to defendant?s request but ordered plaintiff to file an affidavit from a representative with first hand knowledge of how the search was undertaken providing ?a specific explanation of what information was discovered concerning how and why the email at issue were not picked up during the course of that search? and noted that defendant was free to raise the failure to produce those emails with the witnesses at trial
Nature of Case: Breach of contract
Electronic Data Involved: Emails
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