Key Insight: Plaintiff objected to discovery requests and added that it was withholding documents pursuant to this objection . Judge suggested a clearer response would have been preferred, but denied motion to compel.
Nature of Case: State Statute Constitutionality
Electronic Data Involved: ESI – Communications and Documents
Keywords: Objection; Withhold
Key Insight: defendant ordered to produce Salesforce “background data” without cost shifting
Nature of Case: wage and hour
Electronic Data Involved: salesforce “background data”
Keywords: background data; cost shifting; gap in records
Hsueh v. N.Y. State Dep’t of Fin. Servs., No. 15 Civ. 3401 (PAC), 2017 WL 1194706 (S.D.N.Y. Mar. 31, 2017)
In this case arising from claims of sexual harassment at work, the court found that an adverse inference was the appropriate remedy for Plaintiff’s deletion of a recorded conversation with an HR representative. In the course of its analysis, the court agreed with Defendants that “Rule 37(e) applies only to situations where ‘a party failed to take reasonable steps to preserve’ ESI; not to situations where, as here, a party intentionally deleted the recording” and thus relied upon inherent authority to impose sanctions.
Key Insight: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Key Insight: whether production of a random sample is appropriate when full review unduly burdensome
Nature of Case: False Claims Act
Electronic Data Involved: patient records
Keywords: random sample, undue burden, statistical sample, prejudice, TAR
Key Insight: Intentionally deleting ESI is different from failing to preserve and falls under a court’s inherent authority, not FRCP 37(e).
Nature of Case: Sexual harassment
Electronic Data Involved: Recorded conversation
Keywords: Spoliation sanctions, recording, DFS, department of financial services
Key Insight: Court said 37(e) doesn’t apply when recording was intentionally deleted. Adverse inference granted for plaintiff’s deletion of an audio tape, despite its subsequent recovery and production from a hard drive backup.
Nature of Case: sexual harassment at work
Electronic Data Involved: audio tape, hard drive backup
Keywords: adverse inference, over-preservation concerns
Key Insight: no intentional destruction of evidence, mere negligence in not maintaining record of accidents in Qualcomm/PeopleNet
Nature of Case: negligence, loss of consortium, punitive damages
Electronic Data Involved: Qualcomm data, PeopleNet server data
Keywords: Spoliation
Key Insight: 37(e) takes precedence over inherent authority in cases where it can be applied. Spoliation took place before there was anticipation of a trial.
Nature of Case: Defamation, tortious interference with contracts
Electronic Data Involved: e-mails
Keywords: Spoliation, inherent authority, 37(e)
Key Insight: plaintiff is seeking notices of litigation sent to co-insurers by defendant and defendant claims work product and privilege.
Nature of Case: MDL against drug companies for damages for allegedly contaminated blood products.
Electronic Data Involved: post-litigation communications with co-insurers and re-insurers.
Keywords: work product, privilege, notice to insurers, scope of coverage
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