Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: A contract clause limiting liability for data breaches caused by third parties is not unconscionable. However, this clause does not bar negligence claims for failing to comply with minimum data-security standards.
Nature of Case: data-breach class action
Electronic Data Involved: customer personal data
Keywords: data security, personal data, breach, unconscionable
Key Insight: Waiting until the last day of discovery to provide computation of damages does not constitute bad faith warranting severe sanctions.
Nature of Case: vehicle collision negligence
Keywords: willfulness, bad faith, last day of discovery
Key Insight: A law firm’s investigative records prepared for a client may not be withheld on work-product grounds from that client or former client.
Nature of Case: bankruptcy
Electronic Data Involved: Law firm investigative records and forensic accounts
Keywords: work-product, mental impressions, investigative records
Key Insight: waived all objections except for privilege where at first MTC hearing responding party represented that its only objection was based on privilege
Nature of Case: copyright infringement
Electronic Data Involved: ESI
Keywords: MTC hearing
Key Insight: Responding party did not meet its burden to show requests were improper because it only responded with general objections
Nature of Case: breach of contract
Electronic Data Involved: emails and business records
Keywords: general objection,
Key Insight: Plaintiff made “off the cuff” remarks after interview. sought to retrieve recording through replevin. judge issued summary judgment for Defendant.
Nature of Case: Replevin and Wiretap
Electronic Data Involved: audio recording
Keywords: replevin; digital recordings
Key Insight: whether court should modify agreed upon discovery deadline to allow filing of MTC
Nature of Case: defamation
Electronic Data Involved: written communication
Keywords: pro se, deadline, compel,
Key Insight: whether deleting documents for the purpose of depriving the plaintiff of their use in litigation satisfies Rule 37(e)
Nature of Case: breach of contract and unfair competition
Electronic Data Involved: deleted electronic records
Keywords: scholarchip, entrepreneur, webinar
Key Insight: Plaintiff’s motion for terminating spoliation sanctions granted in part, with a permissive inference spoliation jury instruction.
Nature of Case: Dispute over a software platform
Electronic Data Involved: Exported ScholarChip email account to “One Drive” clouds storage and saved copy on defendant’s personal computer.
Keywords: spoliation, permissive inference, intent to deprive
Key Insight: Handwritten notes by Plaintiff had been produced. Plaintiff used attorney typed version to refresh memory before deposition. Court ordered production of typed notes.
Nature of Case: Employment Discrimination
Electronic Data Involved: Typed version of handwritten notes
Keywords: recollection refresh; deposition; privilege; work product
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