Key Insight: petitioner’s motion for contempt, subpoena enforcement
Nature of Case: subpoena duces tecum issued by US Dept. of Labor to Respondent, a roofing company. Workplace safety violations and follow-up inspections..
Electronic Data Involved: text and email messages
Keywords: subpoena duces tecum, failure to take reasonable steps to comply with the order
Key Insight: Jury Instruction due to failure to preserve electronically stored information.
Nature of Case: Defamation
Electronic Data Involved: Web browser history, Internet browser
Keywords: Web browser history, Spoliation
Key Insight: What e-discovery costs are reimbursable by the opposing side, and to what extent?
Keywords: e-discovery expenses, copies, exemplification
Key Insight: Attorney client privilege and work product protections for communications from company devices
Nature of Case: employment discrimination
Electronic Data Involved: Company laptop data
Keywords: attorney client privilege, computer forensics, privacy policy, work product
Identified State Rule(s): CPLR 3103
Key Insight: Search for ESI (specifically emails) using search terms.
Nature of Case: Trusts, Contractual and fiduciary obligations
Electronic Data Involved: Emails and attachments
Keywords: Trusts, Trust name or identifier, electronic search, search terms.
In re State Farm Lloyds, Nos. 15-0903, 15-0905, 2017 WL 2323099 (Tex. Mar. 26, 2017)
Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a “just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.”
In this dispute over the format of production, the Supreme Court of Texas took its opportunity to “(1) clarify that neither the requesting party nor the producing party has a unilateral right to specify the format of discovery under Rule 196.4 and (2) provide guidance regarding the application of Rule 192.4’s proportionality factors in the electronic-discovery context.” In so doing, the court denied the request for mandamus relief without prejudice “to allow the relator to seek reconsideration by the trial court in light of [the] opinion.” The court summarized its conclusions as follows:
Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered. The taproot of this discovery dispute is whether production in native format is reasonable given the circumstances of this case. Reasonableness and its bedfellow, proportionality, require a case-by-case balancing of jurisprudential considerations, which is informed by factors the discovery rules identify as limiting the scope of discovery and geared toward the ultimate objective of “obtain[ing] a just, fair, equitable and impartial adjudication” for the litigants “with as great expedition and dispatch at the least expense … as may be practicable.” (Citations omitted.)
Key Insight: Failure to promptly disclose false evidence
Nature of Case: misappropriation of trade secrets
Electronic Data Involved: email
Keywords: sanctions, affidavit, post-complaint deletion, restoration
Identified State Rule(s): Colorado Rule of Professional Conduct 3.3(a)(3)
Key Insight: The Amended Rule governs unless its application would be unjust or impracticable.
Nature of Case: ADA discrimination
Electronic Data Involved: surveillance video
Keywords: Spoliation, adverse inference, amended rule
Key Insight: insufficient evidence to support finding of spoliation
Nature of Case: Trade secret misappropriation, breach of confidentiality agreement
Electronic Data Involved: deletion of plaintiff’s electronic files from May’s personal hard drive
Keywords: spoliation inference, trade secret misappropriation
Key Insight: Lack of cooperation and deception on production does not lead to terminating sanctions if evidence was not actually destroyed but does lead to adverse inferences and cost shifting
Nature of Case: Unfair Competition
Electronic Data Involved: Electronic records
Keywords: CrossFit, terminating sanctions, perjury
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