Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead
Nature of Case: FMLA claims
Electronic Data Involved: Email
Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order
Nature of Case: Unlawful conspiracy to prevent and suppress competition
Electronic Data Involved: ESI on back up tapes
Key Insight: Finding any request for spoliation sanctions unwarranted, court denied plaintiff’s motion to compel production of emails where defendant made adequate showing that, after reasonable search and inquiry, he was unable to locate requested emails, plaintiff submitted no contrary evidence, and plaintiff identified no flaws in defendant’s search methods
Nature of Case: Employment discrimination
Electronic Data Involved: Email plaintiff claimed was sent in 2000
Key Insight: Court sustained defendant’s objection to interrogatories seeking ?voluminous information? regarding University’s computer systems, email systems, software configurations, system maintenance, and the like as being “beyond overbroad,” finding that cost of auditing Creighton University’s entire computer system was not justified by the possibility that “plaintiff might discover tidbits of information possibly related to this lawsuit”
Nature of Case: Claim arising under Family and Medical Leave Act
Electronic Data Involved: Information about university’s computer systems and email systems
Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue
Nature of Case: Patent infringement
Electronic Data Involved: Email and other ESI
Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order
Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession
Electronic Data Involved: Email and other ESI
Key Insight: Court denied Spain’s motion to reconsider November 3, 2006 Opinion and Order rejecting the various reasons offered as support
Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill
Electronic Data Involved: Email
Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith
Nature of Case: Employment discrimination
Electronic Data Involved: Computer hard drive and backup tapes
Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”
Nature of Case: Trademark infringement
Electronic Data Involved: Email
Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices
Nature of Case: Copyright infringement
Electronic Data Involved: Adult video content; website traffic information
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