Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: The onset of the duty under Rule 37(e) does not have to say which exact kind of litigation that will occur. Prejudice was not found, but the question of intent was pushed to later.
Nature of Case: Contract, copyright
Electronic Data Involved: records, documents, and logs of the company
Keywords: Spoliation, intent to deprive, sanctions, prejudice
Key Insight: Was the email account in question deleted with prejudice? Court found no prejudice, standard practice of deletion plus deletion was done a year before notice of legislation. Opinion however does not cite Rule 37(e)
Nature of Case: School charter renewal dispute/constitutional
Electronic Data Involved: Email account
Keywords: spoliation, sanctions
Key Insight: To what extent does disclosure of privileged documents to third parties waive privilege?
Nature of Case: Litigation for bad faith (Ohio law)
Electronic Data Involved: e-mails, deskfiles, and relevant shared e-documents
Keywords: Accidental waiver, third party disclosure, protected relationships
Key Insight: Court analyzed sanction request without determining if the footage was ESI, and without citing37(e). Court states that no spoliation occurred because there is no bad faith or notice of imminent legislation.
Nature of Case: 1983 legislation
Electronic Data Involved: Prison video surveillance
Keywords: spoliation, video,
Key Insight: failure to take reasonable steps to preserve data, prejudice to other party, intent to deprive
Nature of Case: personal injury
Electronic Data Involved: event recorder data: .dat file
Keywords: reasonable steps, adverse inference, relevance of data, event recorder, black box, laptop crash, prejudice, inferred intent to deprive
Key Insight: Plaintiff had kept a journal which was scanned and provided. Original Hard Copy was then destroyed. Judge granted motion for additional deposition time, but denied adverse inference instruction.
Nature of Case: Employment Discrimination; Wrongful Termination
Electronic Data Involved: Hard Copy of Scanned Journal
Keywords: Sanctions, Adverse Inference, Scanned Copy, Hard Copy
Key Insight: Should deficient search terms be supplemented using court appointed terms? And how closely should counsel work together on electronic searches?
Nature of Case: Workplace discrimination
Electronic Data Involved: e-mails, documents of complaints and communication about complaints
Keywords: Keywords, Cooperation,
Key Insight: Can private social media and metadata be compelled into discovery?
Nature of Case: Bellwether products liability
Electronic Data Involved: Social media
Keywords: Metadata, social media, private data, public data, privacy
Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)
In this case, the court imposed an adverse inference against certain defendants for their failure to preserve text messages in the possession of a non-party, where the court found that the defendants had control of the non-party’s text messages, citing the non-party’s close working relationship with the defendants, his prior participation in the litigation (e.g., by providing documents, etc.), and his financial interest in the at-issue film (and thus the outcome of the litigation).
Key Insight: Court cites rule 37, but not 37(e). No bad faith found for video that automatically overwrote footage, but allowed to question defendant about presence of camera and whereabouts of footage
Nature of Case: Personal injury (automobile accident)
Electronic Data Involved: Electronic data generally (photographs, videos, sketches, maps, diagrams), video
Keywords: ECM data, triggering event
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