Key Insight: Sanctions inappropriate because video was made available well before trial
Nature of Case: False arrest, excessive force
Electronic Data Involved: video
Keywords: lack of evidentiary support, surveillance video
Key Insight: Documents in plaintiff’s girlfriend’s possession could not be compelled, because the girlfriend refused to produce them.
Nature of Case: Civil Rights action
Electronic Data Involved: documents held by third party
Keywords: practical ability test, proportionality, third party subpoena
Key Insight: Deletion of files, destruction of evidence.
Nature of Case: Alleged defendant use of plaintiff’s trade-secret information
Electronic Data Involved: computer images
Keywords: destruction of evidence, forensic examination
Key Insight: Whether FRE 502 applies, whether production was inadvertent, interplay between FRE 502 and clawback agreement, whether production was completely reckless, specificity requirements of clawback agreement
Nature of Case: breach of contract
Electronic Data Involved: e-mail
Keywords: reckless, clawback agreement, waiver, privilege, inadvertent production, court order, log
Nachurs Alpine Sols. Corp. v. Banks, No. 15-CV-4015-LTS, 2017 WL 2918979 (N.D. Iowa July 7, 2017)
In this case, Defendants identified a number of potentially responsive documents by conducting a search with court-approved terms. Upon review of those documents, many were withheld from production as nonresponsive. When Plaintiff sought to compel production of additional documents it suspected were relevant, the court granted the request, but shifted the burden of reviewing the withheld documents to Plaintiff, including cost.
Key Insight: A different office overwrote the recordings, and thus it would be unjust to punish defendant for something they did not do. Moreover, there was no notice, and the recordings were overwritten as a normal course of business.
Nature of Case: Excessive force, 4th/5th amendments
Electronic Data Involved: Recordings of radio calls
Keywords: Notice of duty to preserve, safe harbor, spoliation sanctions, intent to deprive, failure to act
Key Insight: whether counsel assumed responsibility for ensuring a comprehensive search was conducted
Nature of Case: employment discrimination
Keywords: comprehensive search, litigation hold, guidance, reasonable inquiry
Key Insight: No spoliation because no showing that “either Defendants or their counsel acted” with an “intent to deprive” merely that there was “confusion and ineptitude.”
Nature of Case: breach of licensing agreement
Electronic Data Involved: business laptop and several external drives
Keywords: intent to deprive, spoliation, evaluate the reasonableness of preservation efforts.
Key Insight: Court was troubled by lack of full video recording, especially how the only preserved parts were favorable to defendants, recommended recruited counsel on remand for additional depositions and to see if additional recordings exist
Nature of Case: Eighth Amendment
Electronic Data Involved: Security camera recording
Keywords: Cruel and unusual punishment, deliberate indifference, eighth amendment
Snider v. Danfoss, LLC, 15 CV 4748, 2017 WL 2973464 (N.D. Ill. July 12, 2017)
In this case, the court addressed Plaintiff’s request for sanctions for Defendant’s failure to preserve emails and, concluding the information did “not appear to be relevant” and that Plaintiff was not prejudiced, denied Plaintiff’s motion for sanctions:
Federal Rule of Civil Procedure 37(e) incorporates the long-standing legal principle embodied in the phrase used on basketball courts everyday across the country: “No harm; no foul.” Under the particular facts of this case, Defendant’s admitted and erroneous destruction of electronically stored information (ESI), which does not appear to be relevant, has not prejudiced Plaintiff. Accordingly, sanctions are not warranted under Rule 37(e).
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