Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Non party third parties do not have a duty to preserve in anticipation of litigation.
Nature of Case: Spoliation (property rezoning)
Electronic Data Involved: Electronic documents
Keywords: Preservation, spoliation, third-party, Shamrock
Identified State Rule(s): 440.39(7)
Key Insight: Search terms must be narrow, “condo” is too broad a term when seeking discovery from a law firm specializing in condominium law
Nature of Case: Attorney malpractice
Electronic Data Involved: Electronic data
Keywords: Malpractice, condominium, dissolution, condo
Key Insight: Bifurcation of a pst file does not constitute destruction/spoliation
Nature of Case: Employment age discrimation
Electronic Data Involved: .pst file
Keywords: pst file, “whole, untouched, pristine condition”
Key Insight: Student witness statements or employee records are not FERPA protected “educational records,” FERPA can also be overcome through proper redactions and a demonstrable need for the information, no personal stakes in the outcome in the suit discourages disclosure of third party employment records
Nature of Case: Sex-based discrimination
Electronic Data Involved: Various electronic records
Keywords: FERPA, Western Kentucky University, Title IX
Key Insight: whether the government intentionally acted in a way that destroyed evidence
Nature of Case: copyright infringement
Electronic Data Involved: TETRA healthcare data federation software, hard drives, digital information
Keywords: spoliation, reasonable steps to preserve, decommissioning
Key Insight: Excessive document production shortly before deposition didn’t justify additional attorney’s fees
Nature of Case: industrial pollution
Electronic Data Involved: documents
Keywords: attorney’s fees, deposition, document production, inadequate preparation
Key Insight: Are the identities of Individuals who leaked documents important?
Nature of Case: Age Discrimination
Electronic Data Involved: Presentation slides, Business planning documents
Keywords: Informant’s privilege, confidential informant
Key Insight: Scope of discovery, speculation about communications is not sufficient to compel discovery.
Nature of Case: Class action product-defect: design flaw
Electronic Data Involved: Reports and communications re reports
Keywords: Privity, Speculation, Overbroad
Key Insight: Without intent, adverse inference cannot be granted in spoliation of evidence but lesser sanctions still can
Nature of Case: Wrongful termination,
Electronic Data Involved: Text messages
Keywords: duty to preserve, auction, preowned vehicles
Key Insight: Third party assignee of rights does not automatically include rights to the fiduciary exception to attorney-client privilege.
Nature of Case: ERISA
Electronic Data Involved: Electronic documents generally (privileged)
Keywords: attorney-client privilege, fiduciary duty, ERISA
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