Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: inadvertent failure to preserve email evidence leads to monetary sanctions and adverse inference but no termination
Nature of Case: employment
Electronic Data Involved: pictures
Keywords: deleting facebook
Key Insight: Plaintiff lost access to Facebook, subsequently regained access and then deleted while case was pending summary judgment. Defendant was granted adverse inference jury instruction, not dismissal requested.
Nature of Case: Discrimination, Retaliation and Unjust Dismissal
Electronic Data Involved: Facebook Account Records
Keywords: Facebook, Spoilation, Deletion, Access
Key Insight: Protective Order in place regarding source code. Defendant asked for portion to be printed, which was refused. Plaintiff was ordered to produce requested source code.
Nature of Case: Unlawful Use of Information
Electronic Data Involved: Source Code, Log Files, File Directory
Keywords: Source Code; Protective Order
Key Insight: Defendant changed phones and with them photos of fire were lost. Plaintiff requested sanctions due to loss of photos. Court rejects sanction as Defendant could not have known about litigation when phones changed.
Nature of Case: Breach of Contract; Fraud
Electronic Data Involved: Cell Phone Photos
Keywords: spoilation; sanctions
Key Insight: Cost burden for recovery of backup tapes
Nature of Case: workplace discrimination
Electronic Data Involved: backup tapes
Keywords: undue burden or expense, discovery cost shift, cost sharing, excessive discovery costs, vendor estimate
Key Insight: Responsive communications were intentionally withheld and destroyed when the plaintiffs switched to an encrypted communication app
Nature of Case: wrongful termination and age discrimination
Electronic Data Involved: emails, text messages.
Keywords: Intentional spoliation, bad faith, encrypted communication application
Key Insight: whether the burden or expense of the proposed discovery outweighs its likely benefit
Nature of Case: Unjust enrichment
Electronic Data Involved: documents and metadata
Keywords: metadata, discovery categories, relevant and proportional
Key Insight: Court approved TAR protocol detailing disclosure of samples, null set, and blind review
Nature of Case: Product liability
Electronic Data Involved: electronic data
Keywords: TAR protocol
Key Insight: whether the delays in a case as a result of attorney error or inattention could be a reason to dismiss a case
Nature of Case: breach of contract, fraud
Electronic Data Involved: emails, documents
Keywords: evasive, face value
Key Insight: Court did not grant motion to allow only TAR review but ordered cost estimate for cost shifting if requesting party proceeds with insisting review of 100k documents with 1-2% relevance rate
Keywords: low responsive rate and TAR
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