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
Key Insight: Where defendant stated it did not maintain physical copies of statements and that compliance with production request would impermissibly require it to create documents, court found that defendant had not shown requested information was “not reasonably accessible” and ordered production to the extent defendant maintained any of the requested information electronically
Nature of Case: Conversion
Electronic Data Involved: Customer account statements
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 defense motion for dismissal based on plaintiff’s failure to preserve laptop’s hard drive, since there was no evidence that plaintiff’s conduct was intentional or in bad faith — plaintiff explained that hard drive was replaced after laptop crashed and before defendant’s discovery requests were received
Nature of Case: Breach of contract
Electronic Data Involved: Laptop hard drive
Key Insight: State appellate court found no error in trial court’s order denying plaintiff’s motion to compel production of certain hard drives of defendant for the purpose of allowing an expert to determine whether they contained relevant email, since discovery requests at issue made no mention of hard drives
Nature of Case: Employment discrimination
Electronic Data Involved: Email, hard drives
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