Key Insight: Among other findings on plaintiff’s motion to compel, court concluded that keyword search performed by defendant was adequate given the circumstances of the case
Nature of Case: Employment discrimination
Electronic Data Involved: Email
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 ordered that non-party law firm’s hard drive be imaged, and that law firm (not plaintiff) would be entitled to select computer forensic expert to conduct cloning process; court further ordered parties to confer on details and set basic timeframe for cloning and review of material, and ruled that plaintiff would be responsible for costs associated with search and production
Nature of Case: Proceeding to determine the validity of a right of election
Electronic Data Involved: Law firm computer
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 ordered that certain representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching for responsive documents and ESI be documented and attested to by sworn testimony, in order to lay a solid foundation upon which court could decide motion to compel and/or any future motion for sanctions
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses
Nature of Case: Employment discrimination
Electronic Data Involved: Backup tapes and embedded data
Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion
Nature of Case: Construction litigation
Electronic Data Involved: ESI
Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier
Nature of Case: Class action relating to administration of health care plans
Electronic Data Involved: Email
Key Insight: Court denied motion for sanctions but, despite prior production of the information in hard copy, ordered defendant to restore and re-produce information from backup tapes where the information was ?reasonably calculated to lead to the discovery of admissible evidence? and where defendant asserted that it?s ?documentation? was maintained in electronic form in the usual course of business, and ordered the parties to split the costs; court declined to compel defendant?s search of computers which ?may or may not have been utilized by plaintiff and his comparators? where requiring a search of an unknown number of computers in various offices with the possibility that no relevant individuals utilized them was unduly burdensome
Nature of Case: Employment discrimination
Electronic Data Involved: Backup tapes, computers
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