Key Insight: Court rejected defendant’s excuses for extended delay in producing itemization of withdrawals in a format usable by plaintiff, and ordered defendant to reimburse plaintiff for the reasonable cost of attorneys’ fees incurred in moving for contempt of court’s prior order
Nature of Case: Breach of contract
Electronic Data Involved: Billing records, backup tapes, DVDs
Key Insight: Where defendant had not previously understood that its obligation to search for responsive documents extended to email accounts, but counsel had taken steps to rectify the situation, court denied plaintiff?s demand that defendant be compelled to produce an affidavit describing its document search and collection processes, and instead ordered defendant to provide a verified statement signed by a responsible corporate official that defendant made a good faith search for responsive material and that all responsive, non-privileged documents were produced
Nature of Case: Trademark infringement
Electronic Data Involved: Email
Key Insight: Magistrate judge was within his discretion to order that original discs be produced for computer expert’s inspection and copying so that all parties could be satisfied as to the authenticity and integrity of the copies provided
Nature of Case: Employment discrimination
Electronic Data Involved: Computer discs onto which plaintiff had copied various files of defendant
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
Key Insight: Court ordered: “The parties should also resolve MBF’s request for production of Boehringer’s computers and data storage devices. In the event the parties do not cooperate and resolve the discovery issues, the Court will hold a hearing and require attorneys to be present.”
Nature of Case: Former employer alleged copyright infringement, breach of contract, unauthorized access of its computer system, and misappropriation of trade secrets claims against former employee
Electronic Data Involved: Former employee’s computer and data storage devices
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
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