Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian
Nature of Case: Breach of contract (non-conforming goods)
Electronic Data Involved: Emails
Key Insight: Court ordered plaintiff to return documents gained through illegal access to defendants’ computer system and ordered plaintiff to pay defendants’ expenses related to its motion but declined to dismiss the case or preclude use of documents received in ?normal course? of discovery where policy favors resolution on the merits, where most documents would have been produced in discovery, where improper conduct was not ongoing, and where preclusion of evidence would have provided windfall advantage to defendants
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Despite court?s acknowledgment of the requested data?s relevance, plaintiff?s offer to provide a technical expert to perform the search, and plaintiff?s proffer of at least three alternative search protocols, court denied plaintiff?s motion to compel a school district to search for specified terms in the databases of all its schools where court found that the proposed discovery imposed an excessive burden due to the district?s lack of technical resources and where plaintiff?s proposals failed to sufficiently lessen that burden
Nature of Case: Complaint alleges unreasonable seizure of high school student and use of excessive force resulting in permanent injuries
Electronic Data Involved: Computer databases at all school’s in district
Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log
Nature of Case: Bad faith failure to defend or indemnify
Electronic Data Involved: Notes made in electronically stored case file
Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents
Nature of Case: Title VII action for discriminatory discipline based on race
Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?
Electronic Data Involved: ESI, “.sav” data
Key Insight: Court sustained objection to request seeking “[a]ny and all electronically stored information, documents, reports, logs and/or memorandums contained in any and all of the electronic databases and/or computer systems of Allegheny County Jail, Allegheny Correctional Health Services, Inc., Bruce Dixon, and Dana Phillips” as overbroad, unreasonably cumulative, and unduly burdensome, since the request imposed no limits (time or otherwise) on ESI requested; court allowed plaintiffs to revise request to include reasonable limitations and serve it by certain date
Nature of Case: Wrongful death
Electronic Data Involved: Unspecified ESI
Key Insight: Noting that case involved the operation of a government office, and images were contained within a government computer where there could be no expectation of privacy (particularly not when it is alleged that images were already seen by plaintiff and others), and pornographic images were clearly relevant if not ?res gestae,? court overruled County?s objections and ordered County to (1) provide plaintiff with copies of all of pornographic images from criminal investigation that were in its custody and control; and (2) allow plaintiff’s counsel and a computer forensics specialist access to the hard drive of supervisor?s work computer, so that all responsive images could be copied in electronic format for plaintiff’s counsel
Nature of Case: Plaintiff alleged she was required to work in a sexually hostile environment, and specifically that she was exposed to extreme, graphic and debasing computer/internet pornography contained in her supervisor’s office computer
Electronic Data Involved: Pornographic images stored on supervisor’s office computer
Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information
Nature of Case: Misappropriation of trade secrets and computer fraud and abuse
Electronic Data Involved: Laptop hard drive, USB Thumb-Drive
Key Insight: Remanding case for new trial on other grounds, appellate court noted that trial court may have committed an error of law, in analyzing plaintiff?s request for adverse inference instruction as sanction for government?s failure to preserve email, by equating the intentional conduct necessary for such an instruction with bad faith; appellate court would leave it to trial court to consider request for adverse inference instruction on remand, but observed that (even absent a court order) the duty to preserve material evidence arises not only during litigation but also extends to that period before litigation when party reasonably should know that evidence may be relevant to anticipated litigation
Nature of Case: Employment discrimination and retaliation
Electronic Data Involved: Email
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