Key Insight: Security footage was overwritten before notice of lawsuit, so no spoliation; no intent to deprive found.
Nature of Case: Prisoner civil rights
Electronic Data Involved: Security video footage, audio recording, medical records
Keywords: video footage, deleted footage, spoliation sanctions
Key Insight: Despite rule 37(e), the court ordered sanctions for negligent failure to preserve. The court ruled that since rule 37(b) did not apply without a discovery order, the court may issue sanctions under its inherent power. Relevance is proportional to burden on party seeking the adverse inference.
Nature of Case: Workplace discrimination
Electronic Data Involved: email records
Keywords: sanctions, spoliation, adverse inference
Key Insight: Plaintiff reset iPhone, shortly before sending to vendor for forensic examination. Previous sanctions had not proven to deter this activity and recommended dismissal of case.
Nature of Case: Wrongful Termination
Electronic Data Involved: iPhone Records
Keywords: spoliation; destruction; sanctions
Key Insight: All data stored as picture files therefore unsearchable
Nature of Case: Employment Discrimination
Electronic Data Involved: “picture files”; text messages; email; ESI; hard drives; database
Keywords: Cost shifting; Inaccessible; data stored as picture files; searchablity
Key Insight: Discovery request for managers’ text messages was ruled overbroad and not likely to be useful due to store policy that managers only communicate via email or voicemail.
Nature of Case: Fair Labor Standards Act dispute
Electronic Data Involved: text messages, email, communication methods the managers could have possibly used
Keywords: Text messages, overbreadth, overbroad, relevance
Key Insight: Attorneys on both sides had used multiple boilerplate objections when responding to discovery requests. Judge considered sanctions, but did not sanction either side. Was to be considered a warning about using boilerplate objections though.
Nature of Case: Breach of Warranty
Electronic Data Involved: Various ESI
Keywords: boilerplate; objections
Key Insight: Social media information is not specially protected, but discovery requests should be tailored so as to not become fishing expeditions.
Nature of Case: employment discrimination, federal false claims act
Electronic Data Involved: Social media postings
Keywords: Social media, proportionality
Harleysville Ins. Co. v. Holding Funeral Home, Inc., No. 1:15cv00057 (W.D. Va. Feb. 9, 2017)
In this case, the court found that the placement of privileged information on a file share site and dissemination of the hyperlink to access that information without additional protections (e.g, password protection) constituted a failure to take reasonable steps to protect the information and that the attorney-client privilege and work-product protections were waived. Notably, however, because defense counsel accessed the information but failed to notify Plaintiff’s counsel of the possible production of privileged materials, they were ordered to pay Plaintiff’s fees and costs in bringing the motion to disqualify them, which was denied.
Key Insight: Boeing deleted Pemco ESI from a high level employee and removed 2 CD’s containing Pemco ESI.Court concluded Boeing acted with intent and ordered an adverse inference instruction for the jury if it goes to trial and ordered Boeing to pay attorney’s fees and costs.
Nature of Case: contract dispute/MOA termination
Electronic Data Involved: deleted electronic records; 2 missing CDs with ESI
Keywords: spoliation, deletion, prejudice, adverse inference
Key Insight: Plaintiffs files motion to compel text messages in April 2016, Discovery had closed in November 2015. Defendant’s failure to realize that they couldn’t search specifically for text messages is not basis for granting motion to compel so late. Decision was later vacated.
Nature of Case: Contract Dispute
Electronic Data Involved: Text Messages
Keywords: Text messages; after discovery closed
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