Key Insight: Circumstantial evidence to corroborate that the defendant did actually send the social media post/message in question was required, such as metadata.
Nature of Case: aggravated assault and harassment
Electronic Data Involved: Social media
Keywords: metadata
Identified State Rule(s): Penn. Rule of Evidence 901
Key Insight: Violation of a document retention rule is not per se bad faith.
Nature of Case: employment dispute
Electronic Data Involved: deleted electronic records
Keywords: document retention, rule violation, bad faith, spoliation, adverse inference
Key Insight: Refusal to produce documents. Clergy-penitent privilege
Nature of Case: Negligence and failure to warn (Sexual Abuse)
Electronic Data Involved: letter,email, fax,ESI
Keywords: Willful refusal to comply with discovery order; Monetary sanctions; Judicial estoppel
Key Insight: conducting firm business on personal email accounts, employees’ personal email account will be subject to discovery if the employers allow them to mingle their work and personal email accounts.
Nature of Case: workplace discrimination, class action
Electronic Data Involved: personal email accounts, 115,000 documents, 2.5 terabytes of data of 25 custodians
Keywords: interspersing work and personal emails, overlap, spoliation, pay discrimination, wrongful termination
Key Insight: Should a court order a new trial as a discovery sanction to a party’s failure to produce documents?
Nature of Case: Wrongful death
Electronic Data Involved: Health documents
Keywords: New trial, Discovery misconduct, seasonably supplement
Key Insight: Applying the former version of Rule 37(e), because the current version is not retroactive, there is no duty to preserve regularly overwritten business audio recordings absent notice to do so.
Nature of Case: Many, including unlawful arrest
Electronic Data Involved: telephone recordings and video and audio
Keywords: duty to preserve, spoliation sanctions,
Key Insight: Fabricated evidence leads to terminating sanctions
Nature of Case: Employment discrimination, sexual harassment
Electronic Data Involved: Text messages
Keywords: dismissed with prejudice, fabrication, title VII, termination sanctions
Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017)
In this case the court granted Plaintiffs’ motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges despite Defendant’s strong objection. In making its order, the court noted the parties’ agreement that the clawback provision in their existing protective order would be governed by Rule 502(d), precluding waiver, and also reasoned, among other things, that the quick peek would expedite resolution of the dispute and avoid the need for in camera review, which Plaintiffs would inevitably request if their motion was denied.
Key Insight: whether missing evidence is crucial to movant’s case, whether non-movant had intent to deprive
Nature of Case: employment discrimination
Electronic Data Involved: hard copy, email
Keywords: duty to preserve, litigation hold, permissible inference, bad faith
Key Insight: To what extent can redactions be applied to responsive documents outside of ACP and work-product?
Nature of Case: Copyright
Electronic Data Involved: Business documents
Keywords: Redactions, relevance
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