Key Insight: District Court affirmed Bankruptcy Court’s ruling dismissing trustee’s claim for spoliation of evidence since the trustee failed to establish the fifth element of the claim
Nature of Case: Insurer brought adversary proceeding against Chapter 7 trustee
Electronic Data Involved: Email
Key Insight: Where goal of prior discovery orders authorizing immediate forensic copying of computers of defendants’ 50 key custodians by plaintiff?s expert, escorted by United States Marshall, was to protect against defendants? destruction of responsive information in light of defendants? persistent and contumacious refusals to produce ESI, court denied motion for stay of orders pending appeal, finding that the class?s interests far outweighed any potential harm to defendants in the execution of the orders
Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services
Electronic Data Involved: Computer systems of defendant Tennessee state agencies
Key Insight: Where plaintiff submitted photographs of defendant?s computers showing that hard drive from one computer had been tampered with and that hard drives for other computers were missing altogether, and defendants did not oppose substance of sanctions motion, court found that plaintiff had established the four requirements necessary for spoliation inference: (1) evidence in question was within the party’s control; (2) there was actual suppression or withholding of the evidence; (3) evidence destroyed or withheld was relevant to claims or defenses; and (4) it was reasonably foreseeable that evidence would later be discoverable
Nature of Case: Fraud, breach of contract, unjust enrichment
Electronic Data Involved: Hard drives
Key Insight: Where nonparty merely asserted, without adequate factual support, that compliance with the subpoena would cause it to incur ?significant expenses,? court denied nonparty?s request for costs for time spent by its employees configuring and executing electronic search and by attorneys reviewing results of search
Nature of Case: Breach of limited partnership agreement
Electronic Data Involved: Unspecified ESI
Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order
Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession
Electronic Data Involved: Email and other ESI
Key Insight: Where defendant objected that requests for production of certain financial data sought to force them to create documents that did not exist, but did not assert that requested data was not readily accessible, and plaintiffs argued that they sought production of already-existing data (whether or not such data was stored in electronic form), court found that requests sought relevant information and ordered defendant ?to produce already-existing data, whether in raw or synthesized form,? responsive to the requests
Nature of Case: Antitrust litigation
Electronic Data Involved: Financial and sales data
Key Insight: Court denied plaintiff?s motion for ultimate sanction of dismissal based upon defendant’s loss of videotape, since there was no proof of willful or bad faith destruction and marginal relevance of missing videotape was such that plaintiff’s ability to prosecute the case was not meaningfully compromised
Nature of Case: Employment discrimination
Electronic Data Involved: Surveillance videotape showing unpleasant encounter between plaintiff and customer which preceded plaintiff’s termination
Key Insight: Further to its December 20, 2006 order granting plaintiff’s motion for sanctions, 2006 WL 3759914, court awarded plaintiff $134,373 representing reasonable attorneys’ fees and costs (including fees of computer forensics expert) incurred because of defendant’s discovery misconduct
Nature of Case: Insurance fraud
Electronic Data Involved: Hard drives
Key Insight: Court denied motion for expedited discovery but granted motion for preservation order since defendant did not raise any issues regarding the appropriateness of preservation of evidence and court agreed that “all documents, software and things” relating to the matter should be preserved
Nature of Case: Unfair competition
Electronic Data Involved: Documents, software and things
Key Insight: Denying Ford’s request for clarification of January 4, 2007 Order, court nonetheless confirmed that plaintiffs may ask deponent about what materials are available for production, and if materials are not available, why they are not available; “Plaintiffs are not, however, permitted to use the deposition as a surrogate for production of the suspension document, and may not ask questions pertaining to the specific contents or rationale behind the suspension order.”
Nature of Case: Personal injury product liability
Electronic Data Involved: Legal hold notice
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