Key Insight: Court clarified discoverability of relevant social media content but indicated that disclosure of passwords was not required and not permitted by the Federal Rules of Civil Procedure
Electronic Data Involved: Social Media/social network (Facebook, etc.)
Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.
Nature of Case: Intellectual Property infringement
Electronic Data Involved: Images, Webpages
Key Insight: Court found requested data was relevant to class certification but, where Defendant indicated that Plaintiff?s requests ?encompass [ ] tens of millions of transactions and weekly data for each of the more than 6 million merchants that accept American Express? that ?is scattered over at least 6 databases at American Express,? court agreed with Defendant that the requested discovery created an ?enormous burden? and therefore ordered sampling, in a size to be agreed upon by the parties at a court-ordered meet and confer
Nature of Case: class action
Electronic Data Involved: Chargeback-related data (ESI)
Key Insight: Spoliation instructions to jury were erroneous and the case was reversed and remanded for a new trial. No evidence of spoliation was presented at trial and hence spoliation instructions were improper. The Court also went on to discuss the spoliation evidence since it could arise in a new trial. The Court found no spoliation with regard to the deleted emails since Plaintiff?s deletion of emails occurred before she could have anticipated a lawsuit. The Court found that the disposal of Plaintiff?s laptop and sale of her desktop might be spoliation of evidence if there is reason to believe the deleted emails could be recovered from either computer?s hard drive. If Defendant can present evidence that the emails could have been recovered then the court may grant her an instruction on spoliation.
Nature of Case: Alienation of affections
Electronic Data Involved: Emails, hard drives
Key Insight: Applying Fed. R. Evid. 502, court found Defendants? inadvertent inclusion of privileged information in the Administrative Record did not waive privilege where declarations of persons with ?sufficient personal knowledge? established the inadvertence of the inclusion where, in light of the multiple levels of review of the documents and the relevant circumstances including the ?sheer number of pages and compressed timeframe,? the court found Defendant had undertaken reasonable steps to prevent disclosure, and where Defendants took action to rectify the error within three weeks of the disclosure
Nature of Case: Administrative law
Electronic Data Involved: Administrative Record
Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.
Nature of Case: Non-party compensation for document production
Electronic Data Involved: emails and non-electronic documents
Key Insight: Addressing Plaintiff?s concerns regarding Defendants production, characterized by the court as ?thousands of pages of unorganized documents,? the court reasoned that ?Rule 33(d) does not supplant a party?s duty to adequately label and identify responsive documents under Rule 34,? that courts have recognized that production of documents as kept in the usual course of business ?may require the producing party to include different identifying information according to the type of document or file produced,? and that ?the most recent? court decisions have held that both Rule 34(b)(2)(E)(i) and (ii) apply to the production of ESI and concluded that Defendant?s response fell short of its duties under 34(b)(2)(E) and 33(d)(1) and stated that ?[s]ome form of further organization or specification is required to signify that they have provided ?rationally organized productions??
Electronic Data Involved: Unorganized ESI
Key Insight: Where Plaintiff sought spoliation sanctions for Defendant?s deletion of emails and argued that Defendant intended to keep the at-issue account hidden and deleted emails after it was discovered through another party?s production and that those emails revealed Defendant?s intent to keep the at-issue account hidden and other elements of Plaintiff?s claims, the court found that the deletions were ?intended to deprive Plaintiff of the information? contained within and reasoned that Defendant?s claim that he deleted the emails because of computer performance lacked credibility, but declined to impose default judgment absent a sufficient degree of prejudice and instead ordered that a permissive adverse inference instruction would be given to the jury
Nature of Case: Breach of contract and related claims
Electronic Data Involved: Email
Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.
Nature of Case: Employment litigation, unpaid overtime
Electronic Data Involved: Text messages
Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.
Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act
Electronic Data Involved: ESI
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