Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Denying motion to compel plaintiff to produce documents listed on privilege log, court nonetheless found log inadequate and ordered plaintiff to submit an amended privilege log and, further, to identify whether or not each email listed is a ?string? or ?strand? email and, if so, to list each email within a strand as a separate entry in the privilege log
Nature of Case: Allegations of sexual abuse and harassment
Electronic Data Involved: Email
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: Ruling on defense motions for clarification, court directed that plaintiffs? expert and court-appointed monitor shall ?forthwith inspect the State?s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action,? that plaintiffs? expert or his designee ?shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (?ESI?)?; court further ordered that United States Marshall should accompany the plaintiffs? expert to ?ensure that this Order is fully executed.?
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 witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: Email
Key Insight: District court upheld magistrate judge?s ruling that Target’s ?litigation hold? notices were subject to attorney-client privilege and work product protection since notices were communications of legal advice from corporate counsel to corporate employees regarding document preservation; however, court sustained objection to magistrate’s ruling that privilege log was inadequate for failing to separately itemize each individual email quoted in an email string, concluding that Rule 26(b)(5)(A) does not require separate itemization of each individual email quoted in an email string
Nature of Case: Putative class action alleging violations of Truth in Lending Act
Electronic Data Involved: Litigation hold notices; privileged email
Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email
Nature of Case: Breach of contract
Electronic Data Involved: Email
Key Insight: Court ordered plaintiffs to provide a separate disk for each plaintiff’s responses to defendant?s request for production, and instructed (1) that ?electronic documents shall be produced as they are kept in the usual course of business or Plaintiffs shall organize and label the documents to correspond with Veriscape’s requests? and (2) that electronic documents be produced without the use of any compression software and in the format requested by defendant at the hearing
Nature of Case: Breach of contract, termination, and deceit
Electronic Data Involved: Electronic documents produced on computer disk
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
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