Key Insight: Court employed five-factor balancing test to determine that, under totality of circumstances, defendant?s inadvertent disclosure of privileged emails did not effect waiver; court granted defendant?s motion for return of the privileged documents
Nature of Case: Allegations of Medicare fraud and retaliatory discharge
Electronic Data Involved: Privileged emails on CD
Key Insight: Court granted plaintiffs’ Rule 56(f) motion to delay adjudication of summary judgment motion to allow further discovery where collection agency did not retain hard copies of collection letters but instead noted the nature and types of letters on a debtor overview report and saved copies of form letters, and where dispute existed over whether an exhibit submitted in support of defendant’s motion was an accurate reproduction of defendant’s initial communication to plaintiff or a fabrication
Nature of Case: Debtor sued collection agency under Fair Debt Collection Practices Act
Electronic Data Involved: Computer record of collection activity and form letters
Key Insight: Court denied motion for spoliation inference based upon former employee’s deletion of files on home computer, since plaintiff could not demonstrate any prejudice resulting from alleged spoliation or show that former employee was “at fault” for deleting the files, i.e., that he intended to impair plaintiff’s ability to uncover evidence; employee claimed to have deleted the files to ensure that he no longer had access to plaintiff’s information after he resigned his employment
Nature of Case: Misappropriation of trade secrets, breach of non-competition agreement
Electronic Data Involved: Files on former employee’s home computer
Key Insight: Even lacking direct evidence that defendants continued to possess plaintiff?s computer disks and information (which had been seized by the Attorney General in related criminal investigation), trial court erred in denying preliminary injunction given evidence of defendants? knowing and willing participation in criminal, unethical and unscrupulous acts against plaintiff and possibility that information could have been downloaded to other computers, or printed, or handwritten and kept anywhere; trial court’s credibility determination in favor of defendants was abuse of discretion under the circumstances
Nature of Case: Misappropriation of trade secrets and related claims
Electronic Data Involved: CDs and computer disks
Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted
Nature of Case: Fraud and breach of contract claims
Electronic Data Involved: Email and non-email electronic documents restored from backup tapes
Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?
Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation
Electronic Data Involved: Computer hard drives and servers
Key Insight: Defendant’s motion to compel production of plaintiff’s hard drive for inspection denied, since defendant “provided no justification for so broad or invasive a request” and there was no showing that the request was reasonably calculated to lead to the discovery of admissible evidence
Nature of Case: Employment litigation
Electronic Data Involved: Plaintiff’s hard drive
Key Insight: Court denied motion for sanctions based on spoliation of evidence, concluding that, although defendants may have been negligent in their deletion of lines of source code, the record did not support a finding of bad faith or prejudice
Nature of Case: Unfair competition
Electronic Data Involved: Source code
Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur
Nature of Case: Insurance fraud, insurance coverage
Electronic Data Involved: Various hard drives and backup drives
Key Insight: Where plaintiff presented convincing evidence at preliminary injunction hearing of defendant’s intentional spoliation of evidence, including his installation of file ?shredder? program on laptop computer the day before litigation was filed and under threat of its commencement, court allowed inference that that considerably more evidence of misconduct would have been found without the spoliation and granted preliminary injunction barring defendant from, among other things, destroying or deleting relevant ESI
Nature of Case: Breach of employment agreement
Electronic Data Involved: Laptop computer
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