Key Insight: Court imposed sanctions against city in the form of a rebuttable adverse inference, and fees and costs related to the discovery dispute, based upon city’s grossly negligent failure to institute litigation hold and consequent destruction of relevant hard copy documents
Nature of Case: Breach of contract, negligent misrepresentation
Electronic Data Involved: Email printouts and other hard copy documents
Key Insight: Where plaintiff?s affidavit in support of motion stated that emails were used routinely in the course of defendants’ business, described defendants? backup process, and asserted that he was able to run a search on Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 emails, and defendants provided little information except to state that backup tapes were routinely overwritten and that deleted emails could not be recovered, court noted that defendants? efforts to preserve evidence or lack thereof could be an issue in the case and allowed plaintiff to designate IT expert to inspect hard drives and backup media identified in discovery demands; court further directed defendants to provide access, subject to inspection protocol and confidentiality stipulation to be submitted by parties for court approval
Nature of Case: Disability discrimination
Electronic Data Involved: Emails, hard drives
Key Insight: Plaintiff’s motion to compel production of additional computer files denied where plaintiff offered no basis either for excusing delay or for deeming the files in question to be so significant as to justify reopening discovery more than five months after its close
Electronic Data Involved: Computer files
Key Insight: When husband failed to produce, pursuant to subpoena, computer containing financial information at hearing, court allowed a computer technician to go to husband’s home to copy the hard drive, and suspended the hearing until a later date to allow review of the hard drive
Nature of Case: Divorce proceedings
Electronic Data Involved: Computer hard drive
Key Insight: District court did not abuse its discretion where, in course of discovery dispute, it ordered both parties to submit their copies of data to the district court’s Information Technology personnel to see if the material could be retrieved, and denied plaintiff’s motion to compel when court’s personnel had no problems retrieving the data
Nature of Case: Employment discrimination
Electronic Data Involved: Email and electronic documents
Key Insight: Court ordered defendants to produce American College of Radiology reports during certain time frame, to produce all information pertaining to plaintiff contained in, or retrievable from, their computer systems, and, if requested by the United States, to make available for deposition persons with knowledge of the computer system maintained by hospital during certain time frame
Nature of Case: Medical malpractice
Electronic Data Involved: All information pertaining to plaintiff contained in, or retrievable from, defendants’ computer systems
Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested
Nature of Case: Age discrimination
Electronic Data Involved: Deleted email
Key Insight: Court dismissed complaint as discovery sanction finding that: (1) plaintiff’s failure to cooperate in discovery was willful, (2) plaintiff’s conduct had prejudiced the defendant by impairing its ability to prepare its defense, (3) plaintiff had received sufficient warnings that its failure to cooperate could lead to dismissal, and (4) lesser sanctions would not protect the integrity of pretrial procedures or ameliorate the prejudice already visited upon the defendant
Nature of Case: Misappropriation of trade secrets and related claims
Electronic Data Involved: Email and computer code
Key Insight: Court denied plaintiff’s motion to revise earlier court order denying production of computer hard drives for review by forensics expert, declining to adopt the law of Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) and finding that defendant had violated no duty to preserve since emails were deleted according to routine policy and at the time she filed the complaint, plaintiff made no request that emails be preserved
Nature of Case: Age discrimination
Electronic Data Involved: Deleted email
Key Insight: Where there was no evidence that server logs were erased in bad faith and facts suggested that defendant was, at most, merely negligent, since it took reasonable steps to preserve relevant data — it retained and consulted with technical expert; on advice of its expert, it made a copy of the relevant server logs on CDs that could not be overwritten; it stored copies of the data on its server; and it made the data on the server available for inspection by plaintiff prior to the time it was overwritten — and where plaintiff was unable to demonstrate any real prejudice from the loss of some metadata in server logs, magistrate judge found no basis for spoliation sanctions of any kind and recommended denial of plaintiff’s sanctions motion
Nature of Case: Parties asserted claims under Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, each arguing that the other had obtained unlawful access to databases
Electronic Data Involved: Metadata; server logs
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