Wisconsin Alumni Research Foundation v. Apple, Inc. (W.D. Wisc., 2017)
Key Insight: What e-discovery costs are reimbursable by the opposing side, and to what extent?
Keywords: e-discovery expenses, copies, exemplification
CrossFit, Inc. v. Nat’l Strength & Conditioning Ass’n, No. 3:14-cv-01191-JLS-KSC (S.D. Cal. May 26, 2017)
Key Insight: Lack of cooperation and deception on production does not lead to terminating sanctions if evidence was not actually destroyed but does lead to adverse inferences and cost shifting
Nature of Case: Unfair Competition
Electronic Data Involved: Electronic records
Keywords: CrossFit, terminating sanctions, perjury
Distefano v. Law Offices of Barbara H. Katsos, PC (E.D.N.Y., 2017)
Key Insight: To what extent can a party be punished for spoliation under Rule 37(e)? How much does state of mind at the time of spoliation affect the sanction?
Nature of Case: Legal malpractice
Electronic Data Involved: e-mails, electronically-stored records
Keywords: Spoliation sanctions, innocence
Williams v. Angies List (S.D. Ind., 2017)
Key Insight: defendant ordered to produce Salesforce “background data” without cost shifting
Nature of Case: wage and hour
Electronic Data Involved: salesforce “background data”
Keywords: background data; cost shifting; gap in records
Bird v. Wells Fargo Bank (E.D. Cal., 2017)
Key Insight: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Estate of Vallina v. County of Teller Sheriff?s Office (D. Colo., 2017)
Key Insight: Sanctions under rule 37(e) must show actual prejudice, not merely theoretical.
Nature of Case: Wrongful death
Electronic Data Involved: Prison video
Keywords: Spoliation sanctions, actual prejudice, failure to preserve, adverse inference
Hawa v. Coatesville Area Sch. Dist., No. 15-4848 (E.D. Pa. Mar. 16, 2017)
Key Insight: All data stored as picture files therefore unsearchable
Nature of Case: Employment Discrimination
Electronic Data Involved: “picture files”; text messages; email; ESI; hard drives; database
Keywords: Cost shifting; Inaccessible; data stored as picture files; searchablity
Estate of Shaw v. Marcus (S.D.N.Y., 2017)
Key Insight: email
Nature of Case: Family Business dispute
Electronic Data Involved: email
Keywords: Pattern of delinquent conduct; Complete disr4egard for court orders; failure to preserve; Zubulake
Shawe v. Elting (Delaware, 2017)
Key Insight: Even if documents are recovered from deletion, sanctions may still be proper, sanctions are proper when failing to adhere to litigation holds, sanctions based on perjury are not criminal charges of perjury, extreme bad-faith litigation allows for cost shifting of attorney’s fees
Nature of Case: Litigation misconduct
Electronic Data Involved: Electronic files
Keywords: 7 million, sanctions, unusually deplorable, perjury, bizarre, rat droppings
Identified State Rule(s): “American Rule”
Edelson v. Cheung (D. N.J., 2017)
Key Insight: Although the deletion was intentional, the plaintiff was not unduly prejudiced, as there is sufficient other evidence. Therefore, not sanctions other than attorney’s fees for the motion.
Nature of Case: Contract
Electronic Data Involved: email
Keywords: Spoliation sanction, prejudice, intentional