Legal issues, news and best practices relating to the discovery of electronically stored information.
Key Insight: inadequate search and production, misrepresentation, failure to supplement, follow-up, failure to disclose
Nature of Case: patent infringement
Electronic Data Involved: email, board meeting minutes, investor presentations
Keywords: monetary sanctions, needless burden, late disclosures, post-settlement order, misrepresentation, motion to show cause
Key Insight: The court inferred from plaintiff’s improper discovery conduct, hiding documents, privilege problems, etc, into the main case as evidence that the plaintiffs were untrustworthy.
Nature of Case: Patent infringement
Electronic Data Involved: Multiple types of scientific documents, charts, business papers, etc.
Keywords: Spoliation, privilege log, uncooperative discovery, inequitable conduct, litigation misconduct
Key Insight: Even with a litigation hold, if a party would have made no efforts to obtain a serial number, bad faith is not found. Sloppy paperwork may be considered gross negligence in a totality of the circumstances. Rule 37(e) was not used.
Nature of Case: Excessive police force
Electronic Data Involved: Electronic data (Taser usage records)
Keywords: taser, cartridge, serial number, spoliation
Key Insight: Plaintiff requested information related to outside counsel’s evaluation of claims. Court granted, but limited original request.
Nature of Case: Insurance breach of contract and bad faith
Electronic Data Involved: Various documents related to claims investigations; primarily related to outside counsel evaluations.
Keywords: scope; outside counsel; evaluation of claim
Key Insight: Spoliation of evidence via a mobile device. Case filed prior to new Rule 37(e) enactment, so, rule does not apply.
Nature of Case: Fair Labor Standards Act violation
Electronic Data Involved: e-mail account records
Keywords: “old” bad faith analysis, misdirection and deception, 2-step verification.
Key Insight: Service provider failed to preserve ESI
Nature of Case: ERISA action
Electronic Data Involved: ESI contained on servers
Keywords: failure to preserve, servers, service provider, inherent power authority
Key Insight: Without using FRCP 37(e), bad faith is still an importance factor for spoliation
Nature of Case: Failure to provide medical care (deliberate indifference)
Electronic Data Involved: Video footage
Keywords: deliberate indifference, spoliation sanctions
Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.
Nature of Case: Death by negligence and deliberate indifference
Electronic Data Involved: surveillance camera footage
Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., No. 14 Civ. 6512 (KPF), 2016 WL 4991623 (S.D.N.Y. Sept. 16, 2016)
For Defendants’ egregious discovery conduct, including obstructing depositions and failing to preserve and produce relevant documents, among other things, the Court imposed sanctions, including precluding them from litigating the issue of personal jurisdiction; imposing a “spoliation instruction, as appropriate, on any claims that are ultimately submitted to the jury”; ordering payment of Plaintiff’s attorneys fees related to the misconduct; and ordering the retention of a second outside counsel to review their files for additional discoverable materials and to represent them in future discovery-related proceedings. Defendants’ manager and sometimes CEO was also found in contempt for his behavior throughout discovery, including attempting to minimize his own responsibility for the discovery deficiencies by claiming limited involvement and blaming others. Finally, for acting in bad faith in a manner that improperly lengthened the proceedings and for making objections in bad faith, the Court also imposed “modest” sanctions against defense counsel.
Key Insight: failure to review backup tapes, attorney’s fees
Nature of Case: contract dispute
Electronic Data Involved: email, backup tapes
Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy
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