Key Insight: ESI “willfully discarded or deleted”
Nature of Case: Alleged violations of the electronic Communications Privacy Act against defendants accused of stealing plaintiff’s clients and confidential information.
Electronic Data Involved: defendant’s iPhone, laptop and external hard drive
Keywords: adverse-inference instruction, forensic examination of a flash drive.
Key Insight: Plaintiff reset iPhone, shortly before sending to vendor for forensic examination. Previous sanctions had not proven to deter this activity and recommended dismissal of case.
Nature of Case: Wrongful Termination
Electronic Data Involved: iPhone Records
Keywords: spoliation; destruction; sanctions
Key Insight: Sanctions not allowed on parties wiping laptops, because they had only been named as search terms after the other party knew that wiping had happened. No sanction for lost emails available from another source. Pure speculation is not enough to find that relevant ESI was destroyed.
Nature of Case: Securities and Commodities litigation
Electronic Data Involved: Computer log info, laptop info
Keywords: spoliation, sanctions, inherent authority
Key Insight: Party that does not dispute it spoliated ESI should be sanctioned
Nature of Case: consumer protection class action
Electronic Data Involved: deleted electronic records
Keywords: spoliation sanctions, deleted electronic records
Key Insight: Rule 37 does not directly address destruction of video footage.
Nature of Case: prisoner suicide
Electronic Data Involved: video footage, emails, text messages
Keywords: destruction video, spoliation video
Key Insight: No spoliation because no bad faith found when party did not retain records after selling assets (including computers)
Nature of Case: workplace discrimination, disability rights
Electronic Data Involved: unspecified electronic records
Keywords: Rule 37(e) ignored,
Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: Compelling ESI prematurely is not needed if the records will be preserved throughout litigation
Nature of Case: malicious prosecution
Electronic Data Involved: emails, documents
Keywords: Scope of ESI search terms, willingness to produce
Key Insight: Spoliation,
Nature of Case: Trade Secrets
Electronic Data Involved: E-mail accounts, electronic evidence, electronic storage devices, personal and work computers, cloud storage accounts
Keywords: Spoliation, Hot Sheets,
Key Insight: Service provider failed to preserve ESI
Nature of Case: ERISA action
Electronic Data Involved: ESI contained on servers
Keywords: failure to preserve, servers, service provider, inherent power authority
Copyright © 2022, K&L Gates LLP. All Rights Reserved.