Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Court denied request for sanctions or adverse inference instruction based on absence of video footage of plaintiff after arrest since there was no evidence of bad faith and video security system had experienced a number of unexplained problems
Nature of Case: Plaintiff alleged use of excessive force
Electronic Data Involved: Video surveillance footage
Key Insight: Court imposed monetary sanctions, ordered defendant to submit to Rule 30(b)(6) deposition regarding its efforts to locate and produce responsive documents, and ordered defendant to produce key player’s computer for inspection by plaintiff, where evidence showed that the home and/or work computers of a key player and several witnesses had not been searched for responsive documents
Nature of Case: Employment discrimination
Electronic Data Involved: Hard drive; computerized records
Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions
Nature of Case: Trademark infringement
Electronic Data Involved: Email concerning customer communications
Key Insight: In case where parties disputed whether arbitration agreement applied to plaintiff and motion on the issue was pending, court allowed limited discovery and ordered defendant to choose up to 10 individuals whose files (electronic or otherwise) would be searched for information falling within certain categories
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: Court directed defendants to confirm in writing whether it searched particular email accounts or conduct such search if it had not already done so; court further denied plaintiff’s request for spoliation sanctions based upon defendant’s alleged failure to preserve chat room comments since it was highly unlikely that any comments by members of the public that would be pertinent to the lawsuit would have been received, since chat room was opened after relevant time period and technology to save chat room comments was not installed until over a year later
Nature of Case: Trademark infringement
Electronic Data Involved: Chat room comments; email
Key Insight: Court’s preliminary injunction included the following provision: “Pending resolution of this litigation, the Defendants shall not destroy, delete, or alter electronically stored file information.”
Nature of Case: Plaintiff claimed damage to its goodwill and business reputation based upon Internet postings regarding a particular vehicle
Electronic Data Involved: ESI
Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding
Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims
Electronic Data Involved: Computer systems and electronic records
Key Insight: Magistrate judge barred Dell from using certain documents at trial since plaintiff had no notice that the documents would be relied upon by Dell to support its defenses until the documents were specifically produced after the discovery deadline; court noted that, although the documents were among some 542,917 documents produced by Dell in electronic form and in a searchable format using a CaseData System, there was no evidence that Dell ever identified any of the documents provided on the CaseData System as responsive to any particular discovery request, and documents were neither produced as “kept in the ordinary course of business” nor as “ordinarily maintained”
Nature of Case: Patent infringement
Electronic Data Involved: Electronic documents produced in searchable database
Key Insight: This order constitutes the parties? stipulated Electronic Discovery Plan and Order to Preserve Evidence, which includes definitions of various terms and sets out a number of discovery ?protocols?
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Trial court did not err in denying motion for curative jury instructions, a sanction of default, and, after the verdict, a new trial, based upon defendant’s failure to produce a draft expert report; finding no misconduct, trial court had observed: “While I agree that . . . hard copies of draft [expert] reports are discoverable, I am aware of no legal principle that would require a testifying expert witness to separately retain all electronic drafts, including those that were overridden or subsumed during the drafting process.”
Nature of Case: Insurance coverage
Electronic Data Involved: Draft expert report
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