Key Insight: Where defendant had nearly six months to review and accumulate responsive ESI, and represented to court that it intended to produce responsive ESI but provided no date for such production, court ordered defendant to produce ESI within 30 days of court?s order
Nature of Case: Personal injury product liability
Electronic Data Involved: ESI
Key Insight: Where neither party would be able to conclusively prove ownership of disputed technology without analysis of source code, court concluded that documents related to source code and other technology plaintiff claimed as trade secret were ?reasonably calculated to lead to the discovery of admissible evidence? and ordered plaintiff to produce responsive documents and ESI
Nature of Case: Copyright infringement, breach of fiduciary duty, fraud, conversion, breach of contract
Electronic Data Involved: Source code and related technology
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: Where non-party indicated inability to perform electronic search of subpoenaed communication logs and estimated more than 100 hours of manual searching to respond and where subpoenaed information exceeded relevant scope of claims, court declined to impose ?unreasonable burden? on non-party and denied motion to compel; where identification and production of subpoenaed email would result in ?massive expense? but where plaintiffs offered to limit their request to a sampling, court decline to rule pending non-party?s response
Nature of Case: Wage and hour employment case
Electronic Data Involved: ESI, email
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 found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve
Nature of Case: Breach of contract
Electronic Data Involved: ESI, emails, hard drives
Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order
Nature of Case: Unlawful conspiracy to prevent and suppress competition
Electronic Data Involved: ESI on back up tapes
Key Insight: Where government agents altered the ?last accessed? date of relevant files by opening the files to investigate their contents, court denied defendant?s motion for spoliation sanctions upon finding that 1) the agents used the least intrusive means of determining the content of the disks in good faith and 2) the defendant suffered ?minimal? prejudice as a result of the alteration
Nature of Case: Possession of child pornography
Electronic Data Involved: Last accessed data
Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216 (E.D. Pa. 2008)
In this breach of contract case, plaintiff Rhoads Industries, inadvertently produced over eight hundred privileged, electronic documents. Defendants filed a motion to deem the claim of privilege waived arguing that plaintiff’s production was careless, that its response in seeking the return of the documents was delayed, and that it failed to produce complete and accurate privilege logs as to those documents.
In February 2007, Rhoads began preparing for its anticipated litigation against Building Materials Corporation of America. Realizing the likelihood of extensive electronic discovery, Rhoads directed its IT consultant to research software to assist with the electronic discovery effort. The IT consultant eventually purchased Discovery Attender (or “Sherpa”) to perform the necessary electronic data searches. Shortly thereafter, the IT consultant and his team began work to identify locations of potentially relevant information.
Barnett v. Simmons, 197 P.3d 12, 2008 OK 100 (2008)
In this case, plaintiff Barnett sued defendant Rock Oil Company seeking unpaid oil royalties allegedly owed to him. Discovery in the case established that plaintiff maintained files on his computer related to his claims against Rock Oil. Accordingly, Rock Oil sought production of plaintiff’s hard drive. Plaintiff objected, but the parties attempted to reach agreement as to how to accomplish production. No agreement was reached. Rock Oil filed a motion to compel and the court granted the motion. Although the parties were then able to agree on a neutral examiner, the plaintiff dismissed his claims prior to the examination, but expressed his intent to re-file within three months.
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