Key Insight: delayed legal hold and missing metadata caused prejudice; sanctions imposed such that plaintiffs may not use the date in a document to prove document creation date and defendant may offer archived websites from the internet into evidence
Nature of Case: defamation, libel
Electronic Data Involved: websites, emails, metadata
Keywords: metadata, legal hold, spoliation of websites
Key Insight: communications that occurred outside of the mediation but involve the mediator are not protected by the mediation privilege
Nature of Case: Insurance Bad Faith
Electronic Data Involved: documents used in mediation that Defendant claim to be protected by mediation privilege
Keywords: mediation privilege, reconsideration, under seal
Key Insight: Lack of prejudice or evidence of intent to deprive. Denied motion for dispositive sanctions under Rule 37(e). No evidence that higher quality recordings actually existed and were not preserved.
Nature of Case: Excessive force used during security screening
Electronic Data Involved: closed circuit video recordings
Keywords: preserve video recording, excessive force at the security screening.
Key Insight: Lost ESI claim failed because there was no proof anything was lost and there was no clear duty to preserve.
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: archived email, facebook posts
Keywords: spoliation, lost ESI, duty to preserve
Key Insight: Where Defendant contended there was only one way to search the at-issue database but failed to explain why and where Plaintiffs noted Defendant?s failure to offer reasons why optical character recognition could not be used on the database, the court ?agree[d],? reasoning that parties might otherwise be encouraged to ?maintain inaccessible databases to limit their discovery obligations? and noted that Defendant may need to consult a third party vendor if necessary and ordered the parties to meet and confer regarding the issue
Nature of Case: Asbestos exposure liability
Electronic Data Involved: Database
Key Insight: Applying the common law, the court imposed a permissive adverse inference and monetary sanctions for Plaintiff?s spoliation of his cellular phone and its contents where Plaintiff claimed a day before he was scheduled to produce it that he had lost his phone months ago but provided no details regarding the loss or his attempts at preservation or recovery of the phone and where the court concluded that Plaintiff made a ?deliberate choice to withhold [the phone] from production? and that Defendants were prejudiced as a result
Nature of Case: Insurance coverage litigation
Electronic Data Involved: Cellular phone and contents
Key Insight: Where event data recorder information saved on a laptop computer (1) was transferred to a central repository (?the Vault?) without validation and later found to be unreadable and (2) the original files were destroyed, without validating the files in the Vault, with the laptop after a hardware malfunction, court granted plaintiff?s motion for an adverse inference but declined to strike defendants? answer. Court found defendants? failure to review and validate file uploads to the central repository for over 4 years after the accident ?unfathomable? and concluded that ?their failure to access the files uploaded to the Vault for the four-year period before 2010 conflicted with their duties under the Federal Rules of Civil Procedure.? Court found defendants? actions unreasonable and without credible explanation and therefore sufficient to support a finding that defendants acted with the intent to deprive plaintiff of evidence.
Nature of Case: Personal injury (railway accident)
Electronic Data Involved: Event Data Recorder Files
Key Insight: 4.2 million pages of keyword “”hit”” documents produced without review, but designated “”Attorney Eyes Only.
Nature of Case: unfair competition
Electronic Data Involved: 4.2 million pages of keyword “”hit”” documents
Key Insight: Court sustained objection to award of taxable costs related to vendor?s work to provide Plaintiff with an image of Plaintiff?s work computer
Electronic Data Involved: Taxable costs
Copyright © 2025, K&L Gates LLP. All Rights Reserved.