Key Insight: Court granted motion for monetary sanctions against defendant for violating TRO by failing to return proprietary information and data to plaintiff, but reserved judgment on amount of award pending further proceedings
Nature of Case: Employer sued former employee for misappropriation of trade secrets and related torts
Electronic Data Involved: Database containing sales and customer information, email, laptop, zip disk
Key Insight: Court entered preliminary injunction prohibiting defendants from, among other things, deleting, destroying or altering any document, email or computer drive containing any ProPath or ProPath related information, and required defendants to segregate said items into a confidential file not to be used in their business
Nature of Case: Contract breach, misappropriation of confidential information, breach of fiduciary duty
Electronic Data Involved: Email and other electronic files
Key Insight: Qwest general counsel sent urgent/confidential email to managers notifying them of “legal hold” related to pending SEC investigation and advising about the need to preserve certain categories of documents. The email contained a hidden “tracer” that gave notice whenever someone forwarded the email outside the Qwest network. Qwest discharged all employees who forwarded the email to outsiders on grounds of employment misconduct; subsequent denial of unemployment benefits was affirmed.
Nature of Case: Discharged employee appealed denial of unemployment benefits
Electronic Data Involved: Email containing tracer
Key Insight: Court granted plaintiff’s ex parte motion for expedited discovery and for preservation order; defendant ordered not to destroy or remove any books and records, including those stored electronically
Nature of Case: Cable TV provider sued party alleged to have sold illegal decoders
Electronic Data Involved: Email and business records stored on computer
Key Insight: Confident that defense counsel would advise their clients of preservation duty and admonish them of dire consequences of violating same, court denied plaintiff’s motion to preserve evidence in absence of some proof that evidence may be lost or destroyed without it
Nature of Case: Drug products liability
Electronic Data Involved: Discoverable information in paper or electronic format
Key Insight: Government’s past evidentiary failures in other similar litigation appeared to be so pervasive and systematic as to provide ample support for issuance of a document preservation order in this case
Nature of Case: Tribe sued government for mismanagement of trust accounts
Electronic Data Involved: Documents stored in various media related to parties’ claims
Key Insight: Plaintiffs allowed to serve appropriately-worded subpoenas on certain third parties for limited purpose of giving notice of action and placing them under duty to preserve relevant evidence
Nature of Case: Securities fraud
Electronic Data Involved: Unspecified electronic data of third parties
Key Insight: Trial court properly imposed terminating sanctions against plaintiff for egregious discovery abuses, including the deletion of files from hard drives after plaintiff had stipulated that computers and diskettes would not be operated or touched until defendants’ computer expert could examine them
Nature of Case: Breach of contract
Electronic Data Involved: Hard drive, computer files
Key Insight: Defendant’s duty to preserve source code arose no later than service of complaint, and its subsequent destruction of source code warranted default judgment on issue of liability; even assuming that maintenance of only a single, updated version of source code was, in other circumstances, a bona fide business practice, any destruction of versions of the code after service of complaint could not be excused as a bona fide business practice
Nature of Case: Copyright infringement, unfair competition, breach of computer software agreement
Electronic Data Involved: Source code
Key Insight: Finding no bad faith in defendant’s failure to preserve email since defendants simply persevered in their normal document retention practices, court nonetheless ruled that plaintiff would be allowed to prove the facts reflecting the non-retention of email and argue to the trier of fact that this destruction of evidence, in addition to other proof offered at trial, warranted certain inferences
Nature of Case: Trademark infringement
Electronic Data Involved: Email
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