Pinstripe, Inc. v. Manpower, Inc., 2009 WL 2252131 (N.D. Okla. July 29, 2009)

In this case, defendant Manpower, Inc. (“Manpower”) failed to distribute the litigation hold notice that was provided to it by counsel and failed to monitor compliance with oral instructions to some managers.  As a result, “possibly relevant emails were destroyed.”  Despite significant efforts, the deleted data could not be recovered from the system.  Approximately 700 emails were recovered from their recipients, however, and the emails’ attachments were preserved on “another server.”  Plaintiff sought sanctions against Manpower and its counsel.  Specifically, plaintiff sought default judgment or an adverse inference instruction.  The court denied plaintiff’s motion as to counsel, but agreed that some sanctions were warranted against Manpower.  Accordingly, the court’s order allowed plaintiffs to re-open depositions to address the late production and to seek additional relief if the need arose and ordered Manpower to contribute $2500 to the local bar association to support a seminar on litigation hold orders and preservation of electronic data.

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Stengart v. Loving Care Agency, Inc., 973 A.2d 390 (N.J. Sup. Ct. 2009)

Reversing the trial court, the appellate court found that an employee’s communications with her attorney via her personal email account were privileged despite the use of her work computer to send those communications.  The trial court previously ruled that the communications were not privileged as a result of the employee’s use of her work computer, in light of her employer’s policy that, according to the trial court, “put plaintiff on sufficient notice that her emails would be viewed as company property.”  In reversing the trial court, the appellate court found that “the policies undergirding the attorney-client privilege substantially outweigh the employer’s interest in enforcement of its unilaterally imposed regulation.” 

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KCH Servs., Inc. v. Vanaire, Inc., 2009 WL 2216601 (W.D. Ky. July 22, 2009)

Plaintiff moved the court for default judgment, sanctions, or an adverse inference instruction based on defendant Vanaire’s spoliation of evidence, including the deletion of software and electronically stored information (“ESI”) from its computers.  Specifically, following a phone call from plaintiff’s president indicating his belief that Vanaire was using plaintiff’s software, defendant Guillermo Vanegas instructed Vanaire employees to delete any software “that he did not purchase or did not own.”  Additionally, even after plaintiff filed its complaint and sent an evidence-preservation letter, Vanaire failed in its duty to preserve “by continuing to delete and overwrite” ESI.

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U.S. v. Weaver, 2009 WL 2163478 (C.D. Ill. July 15, 2009) (Not Reported)

In this case, the Government sought to discover the contents of defendant’s email sent or received at a Microsoft/MSN Hotmail account. Accordingly, the Government executed a trial subpoena seeking production of “‘the contents of electronic communications (not in ‘electronic storage’ as defined by 18 U.S.C. § 2510(7)’ and specified that the ‘[c]ontents of communications not in ‘electronic storage’ include the contents of previously opened or sent mail.’”  Microsoft declined to produce the content of previously accessed, viewed, or downloaded emails that had been stored for fewer than 181 days citing precedent from the Ninth Circuit Court of Appeals that such production would require a warrant.  Because Microsoft is located within the Ninth Circuit, it felt it must comply.  The Government sought to compel production.

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Spieker v. Quest Cherokee, LLC, 2009 WL 2168892 (D. Kan. July 21, 2009)

This matter was before the court on plaintiffs’ renewed motion to compel the production of electronically stored information (“ESI”).  Previously, the court denied a motion to compel without prejudice for reasons including plaintiffs’ failure to establish the relevance of the material requested and defendant’s estimated cost to comply and directed the parties to address recently enacted Fed. R. Evid. 502 in any future discussions of production and costs.  The parties were unable to reach agreement regarding production, and plaintiffs filed a renewed motion to compel.  Upon finding that plaintiffs had established the relevance of the material requested and that defendant’s estimated costs of production were “greatly exaggerated,” the court granted the motion.

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Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009)

In this case arising from a claim for breach of contract, plaintiff Goodman alleged that defendant Praxair Services, Inc. (formerly Tracer) (“Tracer/PSI”) spoliated relevant data and was deserving of sanctions.  Specifically, Goodman alleged that Tracer/PSI violated is duty to preserve when it failed to implement a litigation hold resulting in a significant loss of data, including the contents of relevant hard drives and emails, and where its CEO deliberately deleted data, among other things.  Goodman also sought sanctions for the spoliation of Tracer/PSI’s third-party consultants’ files.  The court granted in part and denied in part Goodman’s motion and ordered an adverse inference against Tracer/PSI.

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Chen v. Dougherty, 2009 WL 1938961 (W.D. Wash. July 7, 2009)

Following a verdict in their favor, plaintiffs moved for attorneys’ fees as provided by law.  Finding that plaintiffs were the “prevailing parties” under the relevant fee shifting statute, the court indicated its willingness to approve the attorneys’ requested hourly rates, with one exception.  Regarding the time spent by one attorney on discovery, the court ordered the requested rate to be reduced upon finding that her “inhibited ability to participate meaningfully in electronic discovery” was indicative of “novice skills in this area” and not “experienced counsel.”

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Arista Records, LLC v. Usenet.com, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009)

In this copyright infringement case, plaintiffs alleged defendants committed egregious discovery violations deserving of terminating sanctions.  The violations included wiping relevant hard drives of its employees, failing to preserve and produce relevant emails, providing misleading responses to discovery, and violating two court orders, among other things.  Finding plaintiffs’ accusations credible in light of the evidence presented, the court denied their request for terminating sanctions but precluded defendants from asserting their affirmative defense of protection under the relevant statute’s safe harbor provision.  The court then granted summary judgment in favor of the plaintiffs.

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