Key Insight: whether long term care facility must provide clinical records of injury subsequently provided to Quality Assurance Comittee
Nature of Case: personal injury
Electronic Data Involved: Investigative records
Keywords: privileged, Quality Assurance Act
Key Insight: Court ruled that it could not be inferred from mere negligence that the recording would be favorable to defendants. Other sources of information/discovery were available as well. An application of Rule 37(e) would make no difference (the rule was not cited).
Nature of Case: Civil rights
Electronic Data Involved: Deleted cell phone video
Keywords: spoliation, sanctions, adverse inference
Key Insight: Predictive coding models are legitimate, and document review can stop when the burden outweighs the benefits.
Nature of Case: wage and hour class action
Electronic Data Involved: archived email
Keywords: privilege log, predictive coding,
Key Insight: Compelling ESI prematurely is not needed if the records will be preserved throughout litigation
Nature of Case: malicious prosecution
Electronic Data Involved: emails, documents
Keywords: Scope of ESI search terms, willingness to produce
Key Insight: Parties may request specific format type of documents and opposing party must timely object to change format
Nature of Case: Education access
Electronic Data Involved: Emails
Keywords: Native format, FAPE, free appropriate public education, Individuals with Disabilities Education Improvement Act
F.T.C. v. DirecTV, Inc., Case No. 15-cv-01129-HSG (MEJ), 2016 WL 7386133 (N.D. Cal. Dec. 21, 2016)
In this case, the Court addressed Plaintiff’s motion for sanctions under Fed. R. Civ. P. 37(e)(1) but, despite acknowledging that Defendant “could have been more forthcoming in its disclosures to the FTC, and/or more proactive in its preservation efforts,” declined to grant the request to exclude evidence, including Defendant’s expert’s report, absent a showing of sufficient prejudice. Instead, the Court ordered Defendant to make its expert available for a 4-hour deposition, should Plaintiff find it useful.
Key Insight: Spoliation,
Nature of Case: Trade Secrets
Electronic Data Involved: E-mail accounts, electronic evidence, electronic storage devices, personal and work computers, cloud storage accounts
Keywords: Spoliation, Hot Sheets,
Key Insight: Trial court exercises discretion to impose sanctions (no Rule 37(e) used), no bad faith found when requesting footage of the incident where footage surrounding the incident was deleted due to normal retention policies (negligence at best)
Nature of Case: Personal injury (slip and fall)
Electronic Data Involved: Store video footage
Keywords: slip and fall, constructive notice, cable wire, summary judgment
Key Insight: The court inferred from plaintiff’s improper discovery conduct, hiding documents, privilege problems, etc, into the main case as evidence that the plaintiffs were untrustworthy.
Nature of Case: Patent infringement
Electronic Data Involved: Multiple types of scientific documents, charts, business papers, etc.
Keywords: Spoliation, privilege log, uncooperative discovery, inequitable conduct, litigation misconduct
Key Insight: inadequate search and production, misrepresentation, failure to supplement, follow-up, failure to disclose
Nature of Case: patent infringement
Electronic Data Involved: email, board meeting minutes, investor presentations
Keywords: monetary sanctions, needless burden, late disclosures, post-settlement order, misrepresentation, motion to show cause
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