Key Insight: Court ordered defendant to supplement interrogatory response where deposition testimony showed that some of the information sought in the interrogatory could be obtained from a simple computer operation
Nature of Case: Insured alleged that insurer’s denial of claim violated 42 U.S.C. ? 1981
Electronic Data Involved: Computerized claim file information
Key Insight: Court denied plaintiff?s motion to dismiss IBM’s counterclaims as sanction for deletion of computer files, since erasure was done before suit was filed and did not amount to willful or bad faith disregard of discovery order or discovery request; court indicated that a jury instruction regarding destruction of documents may be an appropriate lesser sanction
Nature of Case: Breach of contract for development of software
Electronic Data Involved: Computer files containing both project-related documents and purely personal documents
Key Insight: Court denied plaintiffs’ motion for sanctions stemming from defendants’ failure to disclose various relevant documents until after the close of fact discovery and plaintiffs’ expert disclosures, though defendants provided the material to their experts; instead, plaintiffs’ experts would be allowed to supplement their reports to address the belatedly-produced material
Nature of Case: Class action alleging violations of ERISA
Electronic Data Involved: Spreadsheets and reports
Key Insight: Texas Supreme Court denied defendant’s request for mandamus relief, finding that trial court did not abuse discretion in ordering production of backup tapes since defendant failed to support its objections as required by Tex. R. Civ. P. 193.4(a)
Nature of Case: Class action against web host alleging contract breach, negligence and violation of Deceptive Trade Practices Act
Electronic Data Involved: Backup tapes
Key Insight: Court ordered defendant to respond to document requests by searching its electronic storage devices and electronic data compilations; plaintiff convinced court that defendant may not have satisfied its discovery obligations by showing that responsive Diebold documents and emails had been obtained from other sources, but had yet to be produced by Diebold itself
Nature of Case: Insurance coverage
Electronic Data Involved: Emails
Key Insight: Forwarding or copying email or other documents that are prepared by non-lawyers for business purposes to a lawyer does not transform such email or documents into work product
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: After case was removed to federal court, defendant obtained order vacating state court’s entry of ex parte preservation order requiring defendant to “suspend all routine destruction of documents, including but not limited to, recycling back-up tapes, automated deletion of e-mail, and reformatting hard drives,” compliance with which defendant estimated to cost $50,000/month
Nature of Case: Product liability
Electronic Data Involved: Documents and information in paper or electronic format
Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”
Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)
Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data
Key Insight: Plaintiff’s failure to preserve computer printouts and telephone lists loaded onto Palm Pilot did not warrant an adverse inference instruction, but did warrant monetary sanctions of $28,271.75 to be paid by party (not his attorney) to compensate the victim for attorneys’ fees and expenses arising both from additional discovery required to locate equivalent information by alternative means and from the motion practice necessitated by the spoliation
Nature of Case: Action seeking monetary damages and specific performance of stock option agreement
Electronic Data Involved: Hard copy material loaded onto Palm Pilot
Key Insight: Requiring defendant to bear expense of identifying class members was abuse of discretion where cost of effort (over $16,000), which included manually sorting records, keypunching and creating software programs, would be same for plaintiff and no special circumstances existed
Nature of Case: Securities fraud class action
Electronic Data Involved: Computer tapes
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