Key Insight: Negative inference not warranted in NTSB board proceeding where computer tapes containing radar data were destroyed pursuant to FAA policy and without notice that pilot would raise issue of near-miss
Nature of Case: Petition for review of order of NTSB revoking pilot’s airline transport certificate
Electronic Data Involved: Tapes containing radar data
Key Insight: Wife’s acts of removing laptop from family home and delivering it to her attorney for safekeeping were not wrongful; court established protocol for inspection and production
Nature of Case: Divorce proceeding
Electronic Data Involved: Financial data stored on laptop provided by husband’s employer
Key Insight: Plaintiff’s motion for preliminary injunction granted; defendants enjoined from destroying, erasing or altering any of its computer-stored information that concerns any of plaintiff’s claims against them
Nature of Case: Trademark infringement
Electronic Data Involved: Computer data
Key Insight: In related action, court granted defendant’s ex parte application to allow its consultants to create mirror images of plaintiff’s computer hard drives, backup tapes and other storage media, in light of allegation that critical document and email were fabricated; after granting unopposed motion to dismiss, court awarded defendant $24,845.99 in fees and costs, including computer consultant fees of $5,650
Nature of Case: Alleged breach of lease agreement
Electronic Data Involved: Hard drives and other storage devices
Key Insight: Reference to previously entered TRO, ordering, among other things, that the parties neither destroy, alter, modify nor conceal any relevant data, including data stored on computer media, that defendants create and thereafter produce to defense counsel a backup file of defendant Bailey’s laptop computer, and a backup file of any personal computer hard-drive to which defendant Bailey has had access at any time, and that defendants produce a redacted copy of these hard-drive backup files to plaintiff’s counsel within three days after entry of the TRO; subsequent preliminary injunction included similar provisions
Nature of Case: Employer sued former employee for breach of employment contract, tortious interference, misappropriation of trade secrets
Electronic Data Involved: Databases containing sales and customer information
Key Insight: Court declined to impose terminating sanctions and instead ordered an adverse inference sanction against defendant for employee?s intentional spoliation of electronic evidence where the destruction was motivated by an intent to eliminate incriminating evidence but where the prejudice was minimal in light of plaintiff?s ability to obtain copies of the deleted evidence by other means
Nature of Case: Patent infringement and misappropriation of trade secrets
Electronic Data Involved: ESI, emails
Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice
Electronic Data Involved: Email and hard copy documents
Key Insight: Court granted ex parte application for TRO and related relief in order to locate and recover stolen information, and ordered return of laptops and “bit stream copying” of defendants’ computers to preserve deleted data
Nature of Case: Financial services company sued former employees for conspiring to steal confidential and proprietary information and unfair competition
Electronic Data Involved: Client databases and other proprietary information
Key Insight: Granting motion to compel disclosure of all relevant computerized data under former Rule 26(a)(1), court observed: “As used by the advisory committee, ‘computerized data and other electronically-recorded information’ includes, but is not limited to: voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e-mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically-recorded information.”
Nature of Case: Copyright infringement (posting of copyrighted photographs on web site)
Electronic Data Involved: All voice mails, email, web sites, web pages, and other relevant electronic data
Key Insight: Plaintiff sanctioned $10,000 for failing to preserve or search email of certain persons; key word search to be narrowed
Nature of Case: Business sued competitors for defamation and unfair competition
Electronic Data Involved: Email, databases (scope of key word search)
Copyright © 2022, K&L Gates LLP. All Rights Reserved.