Key Insight: Defendant deleted backup tapes after litigation hold notice issued. Spoliation occurred, but no default judgment
Nature of Case: class-action employment
Electronic Data Involved: Backup tapes
Keywords: sanctions, backup tapes, destruction
Key Insight: The court granted defendant’s motion to compel production of filepath information, but allowed defendant to object to producing discrete filepath information if defendant can articulate a good faith basis for the objection, including irrelevance as to time or scope, or if the filepath data is misleading. If any filepath data is not readily accessible, the parties must confer and attempt to reach a cost-effective resolution prior to seeking the court’s involvement. The court also confirmed the parties’ mutual understanding that they are obligated to “preserve ephemeral, deleted, and other related kinds of data where counsel reasonably suspects such data is relevant” to the litigation.
Nature of Case: Trade secret misappropriation
Electronic Data Involved: ESI generally
Key Insight: Plaintiff, a professional photographer, filed a motion for spoliation sanctions against the defendant, claiming the deletion of emails were crucial to the claims and defenses in the litigation. The court denied plaintiff’s motion, finding: there is no evidence that the emails at issue actually existed, and an inference that they did not exist; if the emails existed, there is no evidence that the defendant lost or destroyed any emails in order to prevent plaintiff from using them in the litigation; and plaintiff is not prejudiced by the purported loss. Plaintiff never proved that the purported emails existed and to succeed on a spoliation of evidence motion, mere speculation is not enough.
Nature of Case: Copyright infringement
Electronic Data Involved: Emails
Key Insight: plaintiff violated the protective order by filing a pleading attaching confidential documents
Nature of Case: employment discrimintation
Electronic Data Involved: confidential documents protected under the protective order
Keywords: protective order, confidentiality
Key Insight: At the start of litigation, Plaintiff sent a preservation letter to Defendant(s). Subsequently, a Defendant requested Plaintiff produce records and screenshots of text messages from his phone for the month of the incident that was the basis of the litigation. Plaintiffs produced several screenshots of text messages, but was unable to provide the requested phone records. During a subsequent deposition, Plaintiff claimed that he still had the phone.
Additional Defendants subsequently requested a digital download of all information on the phone. However, in response Plaintiff claimed that he no longer possessed the phone. Defendants responded with a Motion for Terminating Sanctions on the basis of spoliation of evidence.
Utilizing a five-part test for imposing sanctions adopted by the Ninth Circuit, the Court found that none of the factors were in favor of sanctions in the litigation. Defendants’ Motion for Terminating Sanctions was denied.
Nature of Case: Personal Injury
Electronic Data Involved: Cell Phone Data, Cell Phone Data Image, Text Messages, Phone Records
Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so
Nature of Case: personal injury and liability
Electronic Data Involved: plaintiff’s cell phone and text messages
Keywords: spoliation, text messages, phone records, cell phone, preservation
Key Insight: third parties want the court to investigate all of the people that had access to discovery materials and assure that they are destroyed for fear of future litigation or political liability
Nature of Case: gerrymandering
Electronic Data Involved: discovery that had been produced
Keywords: preserving confidentiality of information, public accessibility
Key Insight: Failure to produce; Sanctions; Proportionality
Nature of Case: Trademark & Copyright infringement
Electronic Data Involved: Hard copy; correspondence; email
Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;
Key Insight: spoliation of video evidence requested by plaintiff
Nature of Case: Slip and fall liability
Electronic Data Involved: Surveillance camera footage
Keywords: spoliation, surveillance, sanctions
Key Insight: withholding discovery on the basis that forensic imaging isn’t under the scope
Nature of Case: trade secrets, unfair trade practices, unfair competition
Electronic Data Involved: Defendant’s laptop and associated harddrives
Keywords: scrubbed metadata, forensic imaging, hard drives, scope of discovery, bad faith litigation
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