Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so
Electronic Data Involved: Backup tapes
Key Insight: Court denied motion to compel defendants to sign releases authorizing ISPs to disclose ?all account information, electronic data, information and emails associated with numerous internet website domains? where ?given the nature of the transactions? at issue, such information would be likely to involve the confidential matters of numerous third parties and where the court was unable to protect those parties from ?unauthorized disclosure of their confidential records and information?; court analysis included finding that defendants had control of the electronic information in the custody of the ISPs ?because, according to federal statute, they may consent to grant access to their information?
Electronic Data Involved: All account information, electronic data, information and emails associated with numerous internet website domains
Key Insight: Court held that ?precedent shows that the requesting party bears the cost of electronic discovery when the data sought is ?not reasonably available? upon a showing of undue burden and denied defendant?s order to show cause to compel plaintiffs to pay the costs where defendants data was neither archived nor deleted but simply stored in a number of places and interspersed with other business documents
Electronic Data Involved: ESI
Key Insight: Appellate court modified amended order of the lower court and granted plaintiff?s petition to compel production of certain electronically stored photographs and the associated ?system? metadata in response to plaintiff?s FOIL request; court was careful to limit scope of holding to the present case such that the opinion did not address ?the issue concerning whether and when metadata of any nature is subject to disclosure under the CPLR? (Civil Practice Law Rules)
Nature of Case: Freedom of Information request
Electronic Data Involved: Electronically stored photographs and associated “system” metadata
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
Key Insight: Where defendants accused the government of spoliation of all disks (originals and copies) containing relevant data from a particular computer system and requested dismissal of the indictment against them as a result, court denied the motion for dismissal upon determining that defendants failed to establish the materiality of the data such that its destruction (intentional or otherwise) was a constitutional violation and where a complete copy of the data existed on a backup tape seized later in the investigation
Nature of Case: Criminal – Mail fraud
Electronic Data Involved: Data stored on JENKON system
Key Insight: Court granted motion for leave to serve subpoenas on third parties (GoDaddy, Microsoft Office Live, and PayPal) for purposes of obtaining information sufficient to identify and locate suspected copyright infringers but ordered plaintiff to narrow the scope of the subpoenas for the limited purpose of identification
Nature of Case: Copyright infringement
Electronic Data Involved: Information sufficient to identify suspected defendants
Key Insight: Supreme court affirmed admission of ?membership data reports? generated from plaintiff?s database as business records and rejected defendant?s arguments that they lacked the necessary guarantees of trustworthiness where the records were relied upon in the usual course of business and where evidence indicated the software had been calibrated to ensure accuracy, among other things, and where the records were properly authenticated by testimony regarding the manner in which they were created and evidence the system had been producing accurate results
Nature of Case: Breach of contract
Electronic Data Involved: ?Membership data reports? generated from plaintiff?s database
Key Insight: Where the issue before the court was whether defendant had intentionally accessed plaintiff?s database without authorization, court relied on an adverse inference arising from defendant?s intentional destruction of a laptop which would have provided key evidence and held that a genuine issue of material fact existed such that summary judgment was not appropriate
Nature of Case: Alleged violations of Computer Fraud and Abuse Act
Electronic Data Involved: Laptop
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