Key Insight: Stating that it was convinced that DuPont was proceeding as fast as it could, given privilege concerns and the sheer bulk of the documents at issue, court denied plaintiffs’ request that DuPont provide a more expedited production of electronic documents
Nature of Case: Tort claims for crop damage allegedly resulting from government’s spraying of herbicide
Electronic Data Involved: Electronic documents
Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead
Nature of Case: FMLA claims
Electronic Data Involved: Email
Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants
Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices
Electronic Data Involved: Privileged email
Key Insight: Email message drafted by a Wachovia corporate litigation attorney summarizing conference call and formulating legal advice concerning bank-wide policy on Wachovia’s relationships with certain customers was protected by attorney-client privilege and work product doctrine, notwithstanding inadvertent production
Nature of Case: Class action alleging that Wachovia conspired with telemarketing companies and payment processor to violate United States law
Electronic Data Involved: Privileged email
Key Insight: Noting that Rule 26(a)(1)(A)(ii) was disjunctive and allowed a party to provide either a copy or description of documents, court found that plaintiff had complied with rule by providing CD containing documents to defendants (regardless of whether document descriptions contained in disclosure statement were insufficient or whether CD was ?searchable?), but directed plaintiff to file supplemental disclosure statement in which he affirmatively states that documents contained on CD were documents he may use to support his claims
Nature of Case: Breach of contract, fraud, trade secret misappropriation and breach of fiduciary duty
Electronic Data Involved: CD containing documents listed in plaintiff?s Rule 26(a)(1) disclosure statement (consisting of more than 11,000 pages)
Key Insight: Sanction of dismissal not warranted where data stored on dive computers was lost when it could no longer be downloaded after one year, since plaintiff did not engage in deliberate destruction, she did not know whether data was helpful or hurtful to her case because she had not seen it, and she had not known that data would automatically become unavailable for download after one year; defendant?s entitlement to alternative relief to be decided at trial; court further granted plaintiff?s motion for summary judgment dismissing defendant?s counterclaims for ?fraud on the court? and ?spoliation of evidence?
Nature of Case: Negligence, product liability, wrongful death
Electronic Data Involved: Dive information stored on VR3 dive computers
Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?
Nature of Case: Traffic accident resulting in personal injury
Electronic Data Involved: ESI, laptop
Key Insight: Where defendants failed to timely respond to discovery requests, failed to respond to two motions to compel, and where individual defendant testified he made no attempt to look for files or emails in response to discovery requests, Court granted motion for sanctions and issued order setting final deadline for production, barring all of defendants? objections to production except attorney-client privilege, fining defendants $1,000 and ordering payment of plaintiffs? attorney?s fees
Nature of Case: Suit for damages resulting from improper strip search
Electronic Data Involved: Emails, ESI
Key Insight: Court denied motion to compel where plaintiff failed to offer any evidence that requested emails existed and where defendant offered sworn testimony that all responsive document had been produced; court also denied plaintiffs? motion for spoliation sanctions where plaintiff offered no evidence that allegedly spoliated materials existed; where defendant indicated its inability to locate a particular document but produced audio tapes detailing the contents, court declined to impose sanctions because plaintiffs offered no evidence of defendant?s intentional destruction of evidence and because plaintiffs suffered no prejudice in light of alternative source for requested information
Nature of Case: Litigation concerning insurance company’s denial of benefits
Electronic Data Involved: Email, ESI
Key Insight: Citing Aguilar v. United States Dep?t of Homeland Sec, 2008 WL 5062700 (S.D.N.Y. Nov. 21, 2008), which stated: ?In the absence of an issue concerning the authenticity of a document or the process by which it was created, most metadata has no evidentiary value.?, court denied motion to compel production of metadata where plaintiff failed to show its relevance and made no claim that the documents had been improperly modified
Nature of Case: Claims arising from the Securities Exchange Act
Electronic Data Involved: ESI, metadata
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