Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: if the district court erred in going forward with trial even though all samples were not produced in discovery
Nature of Case: patent infringement
Electronic Data Involved: samples of proposed infringing product
Keywords: production of materials, motion to compel production, sufficient evidence
Key Insight: spoliation sanctions
Nature of Case: ? 1983 civil rights action
Electronic Data Involved: videos, photographs
Keywords: spoliation, intent to deprive, 37(e)(2),negligence, prejudice 37(e)(1), duty to preserve
Key Insight: Private messages between individuals that are not defendants are protected from discovery through the Stored Communications Act even if the providing company itself is the named defendant
Nature of Case: Class action securities fraud
Electronic Data Involved: Electronic messages (twitter direct messages)
Keywords: Class action, direct message, twitter, stock
Key Insight: whether non-movant acted in bad faith or with the intent to deprive
Nature of Case: personal injury
Electronic Data Involved: surveillance video
Keywords: Eleventh Circuit, crucial, bad faith, usual course of business, broad and far-reaching request
Key Insight: Motion (denied) for adverse inference based on alleged spoliation.
Nature of Case: 8th Amendment claims under 42 U.S.C. s. 1983
Electronic Data Involved: surveillance video
Keywords: inherent power, adverse-inference instruction
Key Insight: Rule 37(e) governs, an expert may not opine on what a party may/may not or should/should not have done
Nature of Case: Products liability
Electronic Data Involved: business documents
Keywords: Expert, 37(e), spoliation sanctions
Key Insight: Courts have inherent authority and FRCP 37 to apply sanctions for spoliation and the inherent authority analysis (which the court used in this case) is much the same as FRCP 37
Nature of Case: Trademark infringement
Electronic Data Involved: Electronic data generally (EDI records, Quickbook files, passwords, sales data)
Keywords: Turkey, women’s apparel, Lanham act
Identified Local Court Rule(s): W.D. Wash. LCR 7
Key Insight: Intent must be proved for adverse inference sanction, “evilness” of corporation not at issue
Nature of Case: Trade secret misappropriation
Electronic Data Involved: Electronic records
Keywords: Uber, evil corporation, trade secret, imagination, spoliation, Academy Award
Key Insight: was data not preserved and therefore lost in bad faith?
Nature of Case: breach of contract, tortious business interference, unfair competition, trade secrets law, etc
Electronic Data Involved: Business documents, information about business strategy, clients and products.
Keywords: preservation, bad faith, destroyed data.
Key Insight: Adverse inference instruct sanction correct because party failed to preserve video evidence when overhauling system
Nature of Case: sip and fall, premises liability
Electronic Data Involved: video
Keywords: adverse inference instructions, culpable state of mind, destroying video
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