Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Court imposed monetary sanctions but not adverse inference instruction where defendant negligently failed to implement adequate litigation hold and preserve electronic evidence, but evidence was insufficient to show defendant acted in bad faith or with culpable state of mind or that plaintiff had suffered any prejudice
Nature of Case: Environmental litigation
Electronic Data Involved: Email and backup tapes
Key Insight: Court denied party’s motion to compel financial data in searchable electronic format in part because moving party had itself refused to produce its financials in searchable electronic format
Nature of Case: Patent litigation
Electronic Data Involved: Financial materials produced on CD in unsearchable “TIFF” format
Key Insight: Defendants’ failure to produce accident report amounted to spoliation of evidence and provided additional ground for denying defense motion for summary judgment
Nature of Case: Slip and fall personal injury
Electronic Data Involved: Accident report prepared by defendant
Key Insight: District court affirmed bankruptcy court’s orders appointing a receiver to monitor debtor’s operations in order to preserve debtor’s assets, and restraining debtor from destroying any records or computer files, where trustee showed that, among other discovery abuses, the debtor’s business data contained on hard drives had been destroyed
Nature of Case: Appeal from bankruptcy court ruling
Electronic Data Involved: Business data on hard drives
Key Insight: In follow-up to earlier decision awarding sanctions for discovery failings (Phoenix Four, Inc. v. Strategic Res. Corp., 2006 WL 1409413 (S.D.N.Y. May 23, 2006)), court awarded Phoenix its attorney’s fees and costs associated with bringing the motion for sanctions in the amount of $45,162, to be paid equally by the SRC Defendants and their law firm; court further ruled that the SRC Defendants’ share ?may not be borne by their insurance carriers?
Nature of Case: Investment company sued former advisor for breach of fiduciary duty, common law fraud, and negligent misrepresentation
Electronic Data Involved: Computer hard drives and servers
Key Insight: Court denied plaintiff’s motion to compel further response to overbroad request for all emails, finding that defendants’ production of all existing emails sent to or from plaintiff, or pertaining to plaintiff’s performance during relevant time period was a reasonable attempt to provide responsive information; court further rejected plaintiff’s motion for an order to show cause regarding possible spoliation, concluding that it was not reasonable for defendants “to have foreseen that all e-mails would be relevant to plaintiff’s situation”
Nature of Case: Employment discrimination
Electronic Data Involved: Email
Key Insight: Court granted plaintiffs’ appeal of magistrate’s order and would permit plaintiffs to raise evidentiary objections to certain evidence at trial, notwithstanding terms of pretrial order which required in limine motions to be filed by certain date, since defendants’ tardy production of hundreds of responsive emails and/or non-compliance with discovery orders made it impossible for plaintiffs to raise those objections as motions in limine
Nature of Case: Beneficiaries of employment benefit health plans asserted class action claims under ERISA
Electronic Data Involved: Email
Key Insight: Court denied motion to compel plaintiff to produce a witness for further deposition under FRCP 30(b)(6), stating that, although defendant “may have some basis for complaining about the timing and manner in which the spreadsheet was produced,” defendant did not demonstrate that additional testimony was necessary regarding the spreadsheet, or that there was any information that was more readily obtainable from a live witness than from the spreadsheet which had been produced in native format
Nature of Case: Trademark infringement
Electronic Data Involved: Excel spreadsheet
Key Insight: Further to its May 8, 2006 order imposing severe sanctions against Krumwiede for willful and bad faith spoliation of evidence, court awarded Brighton $111,348 for its costs and fees relating to sanctions motion
Nature of Case: Former employee who went to work for competitor sued for back pay and reformation of employment agreement; former employer asserted counterclaims for breach of non-compete and confidentiality clauses and related claims
Electronic Data Involved: Laptop computers
Key Insight: Court imposed monetary sanctions of $36,391 where defendants “made no effort whatsoever to locate and provide either documentary or electronic data discovery,” and erroneously represented that relevant electronic evidence was irretrievable, thus giving plaintiffs no choice but to incur the extraordinary expense of hiring a computer consulting firm to retrieve what was purportedly ?irretrievable?
Nature of Case: Class action alleging claims under Fair Labor Standards Act and Migrant and Seasonal Agricultural Worker Protection Act
Electronic Data Involved: Payroll data
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