Key Insight: Where, in response to request for documents indicating an effort to find work, defendant produced a list of emails and screen shots from his computer, but not the emails themselves, court found defendants response inadequate and ordered production of all relevant documents in his possession
Electronic Data Involved: Emails
Key Insight: Where defendants failed to request production of a photograph taken by cell phone in electronic format and later contested plaintiff?s format of production, court denied defendants? motion to compel production and inspection upon noting defendants? failure to contest the photos authenticity or to show that viewing the original would provide information not already in their possession and upon noting Rule 34?s instruction that a party need not produce the same electronically stored information in more than one form
Electronic Data Involved: Photograph taken with cellular phone
Key Insight: Where the court interpreted defendant?s response to plaintiff?s second motion to compel to mean that defendant had complied with its preservation obligations and may produce additional materials and explicitly required defendant to immediately notify the court if that interpretation was not accurate ? and where that interpretation was not accurate but was not corrected by defendant – court granted plaintiff?s third motion to compel and ordered defendant to produce all ESI and other responsive documents with an affidavit describing the steps taken to ensure such production and warned defendant that if ?counsel makes this kind of mistake again? the court would impose sanctions
Electronic Data Involved: ESI
Key Insight: Emails sent to co-workers to recruit them as co-plaintiffs not protected by the work product doctrine where plaintiff merely assumed co-workers would keep his communications secret but where court found that sending emails to employees of a corporation increased the likelihood that the material would reach others within the corporation and thus ruled that plaintiff forfeited the protection by using the work product ?in such a way that they may end up in the hands of [his]adversary;? where plaintiff sent emails to attorney family members and copied his non-lawyer sister or another relative, court ruled emails were protected by work product doctrine because material was prepared in anticipation of litigation and sharing with relatives ?did not significantly increase the likelihood that [defendant] would obtain private information?
Nature of Case: Employment discrimination
Electronic Data Involved: Emails
Key Insight: Finding the restrictions of a protective order preventing defendant?s access to its own electronic materials seized pursuant to a government investigation too onerous and unconstitutional in light of defendants need for access to assist in its defense, and where defendants sought only copies of the material seized such that the originals would remain preserved, court granted defendants motion to vacate or amend the protective order to allow access to the materials but indicated willingness to allow government to justify certain restrictions based on a showing of substantial need
Nature of Case: Challenge to governmental freeze on charity’s assets and seizure of documents and other tangible items pursuant to executive order
Electronic Data Involved: Copies of seized ESI
Key Insight: Where forensic examiner revealed evidence of defendants? data deletion to plaintiffs while bound by stipulated order requiring results of the examination to be reported to defendants first, but where the court found the stipulated order was focused on the discovery of actual data rather than the lack of data and that the examiner was therefore not in violation of the order, court reserved ruling on examiner?s motion for attorney?s fees stating that while the examiner?s actions did not rise to the level of contempt, they were not free from taint and that such actions ?[gave] the Court pause about granting [the examiner?s] motion
Nature of Case: Dispute over sales commissions
Electronic Data Involved: Email, ESI
Key Insight: Where consulting firm retained by plaintiff destroyed soil samples and related electronic data absent implementation of a litigation hold and where plaintiff was obligated to preserve such evidence in light of the possibility of litigation and its knowledge of the evidence?s relevance to that litigation, court attributed the consulting firm?s destruction of the samples and data to plaintiff based upon ?the close ties? between them and imposed a sanction precluding the admission of evidence based on the destroyed evidence; court found that defendant?s failure to conduct its own testing upon notice of impending remediation to the relevant property did not constitute a disclaimer of defendant?s interest in plaintiff?s pre-remediation soil samples, especially where remediation destroyed defendant?s ability to verify plaintiff?s testing results or conduct additional tests and where defendant was not aware that the existing data in plaintiff?s possession would be destroyed
Nature of Case: Cost recovery action
Electronic Data Involved: Soil samples and related electronic data
Key Insight: Appellate court affirmed trial court?s grant of summary judgment to plaintiff despite defendant?s accusations of spoliation and request for an adverse inference instruction where precedent established that the imposition of an adverse inference was permissive and not mandatory and that it was improper to base the grant or denial of summary judgment on evidence of spoliation, among other principles of law, and where defendant failed to identify any information destroyed by plaintiff that could support it?s claims and presented no independent evidence in support of its claims or alleged damages
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: ESI
Key Insight: Court upheld prior determination that email withheld as protected by attorney-client privilege should be produced where review of the email and affidavits of defendant?s employees showed that ?rather than having been asked to make a recommendation, in-house counsel had been charged with making a corporate decision as to whether certain jobs would be reclassified? and that the email informed the recipients of that decision and did not provide legal advice
Nature of Case: Class action alleging violations of Fair Labor Standards Act
Electronic Data Involved: Email
Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
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