Key Insight: FRCP 37(e) not used, discretionary powers used instead. Litigation after a police shooting should be anticipated. Failures all around with the destruction of evidence lead to an adverse inference.
Nature of Case: Wrongful death (excessive police force)
Electronic Data Involved: Audio recordings
Keywords: excessive force, marijuana, knife, child protective services, metadata, shell game
Key Insight: Although the deletion was intentional, the plaintiff was not unduly prejudiced, as there is sufficient other evidence. Therefore, not sanctions other than attorney’s fees for the motion.
Nature of Case: Contract
Electronic Data Involved: email
Keywords: Spoliation sanction, prejudice, intentional
Key Insight: No spoliation because employees were merely unaware/untrained on surveillance system and didn’t intentionally withhold evidence
Nature of Case: wrongful death, slip and fall
Electronic Data Involved: video surveillance
Keywords: Rule 37 ignored, no culpable state of mind, unaware of surveillance
Key Insight: Spoliation
Nature of Case: Plea Agreement – Conspiracy, Obstruction of Justice, Entry of Goods by False Statement
Electronic Data Involved: USB drives, hard drives
Keywords: instruction to destroy documents, late notice of DOJ litigation hold, failure to preserve backup disks, instruction to store documents on removable media rather than network drives
Key Insight: proportionality
Nature of Case: class action
Electronic Data Involved: backup tapes
Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance
Armstrong Pump, Inc. v. Hartman, No. 10-CV-446S, 2016 WL 7208753 (W.D.N.Y. Dec. 13, 2016)
“Implicit in both the language and the spirit of the 2015 Amendments is the obligation, at any stage of a case, to prevent parties from expending increasing time and energy pursuing diminishing returns.”
In this case, despite having viewed all of the at-issue documents and printing “approximately half of the total pages” (albeit under strict protocols), Plaintiff sought to compel “formal production” of all of the documents pursuant to the parties’ protective order, arguing that the documents did not contain “actual programming.” Defendant argued that the documents were “functionally equivalent to source code” and should not be subject to production. Ultimately, the Court reasoned that discovery had “reached the point of diminishing returns” and declined to compel production, with limited exceptions.
Key Insight: How much access of a party’s electronic information system does rule 34(a) give a party?
Nature of Case: Trade secrets
Electronic Data Involved: Responsive documents
Keywords: ESI protocol, Forensic images, overly broad
Key Insight: being negligent and irresponsible in maintaining information and knowing of the obligation to preserve the integrity of the information are not sufficient to show an intent to deprive
Nature of Case: improper termination
Electronic Data Involved: ESI concerning arrival and departure times
Keywords: Spoliation sanctions, intent to deprive, obligation to preserve, adverse inference
Key Insight: necessity of preservation order
Nature of Case: misappropriation of trade secrets
Electronic Data Involved: laptop, mobile phone, email
Keywords: email providers, deleted emails, significant concerns, threats to preservation, capability to preserve, irreparable harm, ex parte, seizure order, expedited discovery
Key Insight: Can documents be compelled to be produced in multiple formats, or in a certain specified format?
Nature of Case: Employment
Electronic Data Involved: Business documents, personnel files
Keywords: Multiple formats, native format
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