Key Insight: Contract was not ambiguous so extrinsic evidence not admissable. Therefore discovery of file was not proportional or calculated to lead to admissable evidence.
Nature of Case: declaratory judgment and bad faith
Electronic Data Involved: underwriters claim file
Keywords: admissability; proportionality; extrinsic evidence
Key Insight: To what extent can a party be punished for spoliation under Rule 37(e)? How much does state of mind at the time of spoliation affect the sanction?
Nature of Case: Legal malpractice
Electronic Data Involved: e-mails, electronically-stored records
Keywords: Spoliation sanctions, innocence
Key Insight: Limiting the scope of discovery requests for full social media account history
Nature of Case: personal injury
Electronic Data Involved: Facebook account history
Keywords: social media, Facebook, proportionality, burdensome discovery
Williams v. Angie’s List, No. 1:16-00878-WTL-MJD, 2017 WL 1318419 (S.D. Ind. April 10, 2017)
Plaintiffs in this case—48 current and former employees of Defendant—alleged they were entitled to “substantial compensation” for hours worked without pay. Plaintiffs further alleged that Defendant’s computerized time records did not entirely reflect their hours worked because Defendant had instructed them to underreport their overtime hours and because many of those hours were worked from home. Plaintiffs therefore sought production of “background data” automatically recorded while they were working on Defendant’s sales platform, Salesforce, in an effort to “close the gaps” in other records. Defendant produced one year’s worth of the requested data, but refused to produce the additional two years sought by Plaintiffs arguing that the information was maintained by Salesforce, “a third-party provider of services,” and that Defendant had “no greater rights” to the data “than any other person.” Defendant also noted the $15,000 invoice it received from Salesforce related to the initial production, which it claimed supported its position that it did not have possession, custody or control of the information. Ultimately, the court granted Plaintiffs’ motion to compel and denied Defendant’s motion to shift costs.
Key Insight: Sanctions for spoliation of evidence resulting from good faith destruction of cell phone
Nature of Case: labor violations
Electronic Data Involved: text messages
Keywords: spoliation, smartphone, intent to deprive
Key Insight: Disclosing legal advice to third parties that need to know via email maintains attorney client privilege
Nature of Case: class action
Electronic Data Involved: archived email
Keywords: timeliness, third parties need to know, attorney client privilege
Identified State Rule(s): Ca. Evidence Code 952
Key Insight: Spoliation sanctions denied because the documents still exist, and were only transferred.
Nature of Case: False representation of a company to others and the public
Electronic Data Involved: information from a computer and shared drive
Keywords: Transferrence of ESI, spoliation sanctions,
Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017)
In this rare opinion from our Supreme Court addressing discovery, the court considered “a federal court’s inherent authority to sanction a litigant for bad-faith conduct by ordering it to pay the other side’s legal fees.” The court held that “such an order is limited to the fees the innocent party incurred solely because of the misconduct—or put another way, to the fees that party would not have incurred but for the bad faith.” Because neither the trial court nor the appellate court applied the correct legal standard, the judgment of the Court of Appeals (9th Cir.) was reversed and the case remanded for further proceedings.
Key Insight: no duty to preserve
Nature of Case: Assault
Electronic Data Involved: video tape recording, audio recordings
Keywords: spoliation, no duty to preserve
Key Insight: Failure to issue a litigation hold, misrepresentation that a hold had been issued, spoliation of evidence, attorney fee award.
Nature of Case: water-protection law violation
Electronic Data Involved: Not specified. However, likely, email and other electronic records.
Keywords: spoliation, litigation hold, lodestar calculation, special master.
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