Key Insight: Sanction must be proportional to loss, loss was mitigated by testimony about the contents and other notes
Nature of Case: Tortious interference, assault, battery
Electronic Data Involved: Audio recording
Keywords: Taylor Swift, audio recording, KYGO, radio, meet and greet
Key Insight: Reimbursement of eDiscovery costs
Nature of Case: trademark infringement, unfair competition, cybersquatting
Electronic Data Involved: documents copied and coverted into a readable format
Keywords: Reimbursement, making copies, converted, copied, native, proportionality, taxable
Key Insight: Keyword searching alone may not be sufficient and can be aided by strategies like predictive coding
Nature of Case: civil rights, fourth amendment
Electronic Data Involved: text messages, social media posts
Keywords: keyword searching, predictive coding
Key Insight: mere statement that disclosure would provide competitors with advantage doesn’t satisfy elements of trade secret.
Nature of Case: medical negligence
Electronic Data Involved: electronic health record (EHR) system
Keywords: confidential and proprietary trade secrets, protective order
Key Insight: whether adverse inference is warranted
Nature of Case: workplace discrimination
Electronic Data Involved: text messages, email
Keywords: relevance, prejudice, obligation to preserve, intent to deprive, gross negligence, inherent authority, sanctions, spoliation, fees, costs, adverse inference, bad faith, willfully
Key Insight: Showing threshold of compelling interest unnecessary before nonparty contact information is discoverable
Nature of Case: Wage and hour class action
Electronic Data Involved: nonparty contact information
Keywords: third party privacy, class action, percipient witness, discovery threshold, threshold requirement
Identified State Rule(s): Cal. Civ. Proc. 2017.010, 1017.020, 2030.300
Key Insight: Despite lack of sanctions due to the evidence being available in other ways, automatic deletion of emails is not best practice.
Nature of Case: Sexual harassment
Electronic Data Involved: Deleted Emails
Keywords: Automatic deletion, Susan Blood,
Key Insight: Production of non-responsive documents for re-review due to distrust may be cost shifted to opposing party
Nature of Case: Trade secret
Electronic Data Involved: Electronic documents
Keywords: fertilizer, trade secret, Nutra-Flo,
Bailey v. Brookdale Univ. Hosp. Med. Ctr., No. C 16-2195(ADS)(AKT), 2017 WL 2616957 (E.D.N.Y. June 16, 2017)
In this single-plaintiff employment litigation, Plaintiff claimed that the cost of production, equaling approximately $2,000-$3,000, was unduly burdensome in light of his personal financial situation, despite the existence of an ESI agreement between the parties, “so-ordered” by the court. Ultimately, the court concluded that although the data was not inaccessible, cost-shifting was appropriate because it appeared that the agreement proposed by the defendants was of a type “typically utilized in a more complex litigation involving multiple parties and corporate entities” and, more notably, because it appeared that Plaintiff’s counsel had not engaged in a “meaningful meet-and-confer session with opposing counsel concerning t[he] Agreement” or thoroughly reviewed the Agreement prior to signing it. In addition to failing to properly confer with opposing counsel, the court concluded that “Plaintiff’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed agreement and what costs might be incurred . . . .” Thus, absent any indication that Defendants would consider an alternative and less expensive form of production, the court ordered 40% of production costs shifted to Defendants and indicated that “fairness dictate[d]” that Plaintiff’s remaining costs “should be borne by Plaintiff’s counsel rather than Plaintiff himself.”
Key Insight: No spoliation when party removed URL link to software download because there was no bad faith and opponent already had software
Nature of Case: breach of contract, misappropriation of trade secrets
Electronic Data Involved: URL, software
Keywords: URL removal, software download, bad faith spoliation
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