Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?
Nature of Case: Class action challenging constitutionality of strip- search policy
Electronic Data Involved: Emails
Key Insight: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff?s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association
Nature of Case: Trademark infringement
Electronic Data Involved: ESI, hard drives
Key Insight: Court denied plaintiffs? request for additional round of pre-certification discovery on defendant?s process of preserving, locating and producing responsive documents, since some electronic documents had been produced and only basis for motion was general ?paucity? of defendant’s document production and ?theoretical possibility? that other electronic documents might exist
Nature of Case: Putative class action against Postmaster General by deaf postal employees
Electronic Data Involved: Unspecified electronic documents
Key Insight: Where plaintiff alleged that former supervisor wrote memos concerning plaintiff?s alleged deficiencies after plaintiff complained about co-employee?s racist comments, that she never saw the memos and did not sign them as was normal practice with disciplinary memos, and defendant had not preserved hard drive of supervisor?s computer, court did not grant adverse inference as to contents of hard drive but found a material question of fact as to plaintiff?s retaliation claim, and denied defendant’s motion for summary judgment on retaliation claim
Nature of Case: Wrongful termination and retaliation claims
Electronic Data Involved: Hard drive, metadata
Key Insight: Magistrate Judge John M. Facciola held that Federal Rules of Civil Procedure may provide guidance in criminal cases in determining whether format of production by government was appropriate, and if ESI is demanded in criminal case, but request does not specify a form of production, responding party must produce ESI in form in which it is ordinarily maintained or in reasonably usable form or forms
Nature of Case: Criminal case against State Department employee for receiving, quid pro quo, gifts and other benefits for expediting visa requests
Electronic Data Involved: Hard copy and electronic files
Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner
Nature of Case: Breach of contract, account stated, open account, and unjust enrichment
Electronic Data Involved: Computer hard drives of plaintiff’s employees
Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition
Nature of Case: Negligence and strict liability
Electronic Data Involved: Letter and email produced in hard copy form
Key Insight: Where defendant had produced significant number of requested documents and ESI ?on a rolling basis? but production was still not complete four months past original deadline and defendant claimed its vendor had just provided another 179,180 ESI documents, court struck compromise between respective deadlines urged by parties (August 15 and June 30, 2008) and ordered defendant to complete its production on or before July 23, 2008; court also issued stern warning that it would not hesitate to impose sanctions in the future for any discovery abuses
Nature of Case: Antitrust and unfair competition claims
Electronic Data Involved: ESI
Key Insight: Where party initially told government he did not have certain computers used in various businesses discussed in complaint, then revealed that he possessed the computers but objected to providing them to government, and then admitted having removed hard drives and hiring third party to create a mirror images, court ruled that government was not bound to accept mirror image made by third party and ordered party to produce computers to government for inspection; court further ordered government to promptly create mirror image of hard drives and return computers promptly to party
Nature of Case: Forfeiture action
Electronic Data Involved: Hard drives of certain computers used in the transactions alleged in the complaint
Key Insight: Where neutral expert could not testify, based on forensic search of Sweet?s computer, that Sweet or someone at his direction had intentionally destroyed subject email, and it appeared that most of expert?s report went beyond scope of his duties as neutral expert and was irrelevant to any issues in case, magistrate judge recommended that plaintiffs? motion for spoliation sanctions be denied and that certain portions of expert?s report be stricken; Report and Recommendation adopted by district court, 2008 WL 2130574 (N.D. Tex. Apr. 23, 2008)
Nature of Case: Dispute over fee owed to Martin and his firm as a result of settlement and verdict in medical malpractice case
Electronic Data Involved: Email sent by Martin via his Blackberry to Sweet confirming the terms of fee arrangement
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