Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: Poor compliance of discovery, including destruction of a computer, does not imply bad faith for sanctions
Nature of Case: False Claims Act
Electronic Data Involved: Electronic notes of conversations
Keywords: Spoliation, defraud, healthcare, pharmacy, prescription
Key Insight: When can a spoliation sanctions motion be brought? When does the person against whom the motion is brought have a duty to preserve?
Nature of Case: Copyright
Electronic Data Involved: online photograph
Keywords: Spoliation sanctions, metadata, native file
Key Insight: production of ESI that party lacks possession of
Nature of Case: breach of contract
Electronic Data Involved: flash drive
Keywords: possession, relevance, custody, control, cost shifting, 34(a), non-party
Key Insight: Whether US based discovery can be used in a foreign proceeding
Nature of Case: 28 U.S.C. 1782 request for US based Discovery to be used in a foreign proceeding
Electronic Data Involved: Business documents
Keywords: US based discovery, foreign proceeding, serve document subpoenas
Key Insight: discovery misconduct sanctions
Nature of Case: breach of contract
Electronic Data Involved: electronic documents
Keywords: 37(b), pierce the corporate veil, alter ego liability, abuse of discretion
Key Insight: After later learning the theory recovering lost profits is based on, parties must rely on documents produced during discovery
Nature of Case: patent infringement
Electronic Data Involved: Documents
Keywords: recovering lost profits, inexorable-flow theory damages, scope of discovery
Key Insight: One party failing to perform their duties in discovery does not absolve the other party’s failures
Nature of Case: Breach of contract
Electronic Data Involved: Electronic documents generally
Keywords: “I know you are, but what am I?” , playground tantrum, unclean hands
Key Insight: Defendant’s motion (granted) to compel discovery from various plaintiff sources of ESI, including social media accounts.
Nature of Case: slip and fall injuries
Electronic Data Involved: emails, text messages, FitBit, social media
Keywords: slip and fall, social media, reflective of an individual’s contemporaneous emotions and mental state.
Key Insight: Providing evidence of voluminous discovery allows for narrowing of search terms
Nature of Case: Patent infringement
Electronic Data Involved: Electronic documents
Keywords: Webasto, Jeep,
Key Insight: government acquisition of cell site location information (CSLI); Fourth Amendment
Nature of Case: Criminal
Electronic Data Involved: cell site location information (CSLI)
Keywords: cell site location information (CSLI); Fourth Amendment, search, third-party doctrine, location data, seizure, voluntarily shared, warrant, cell phone, expectation of privacy
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