Key Insight: Court imposed sanctions against city in the form of a rebuttable adverse inference, and fees and costs related to the discovery dispute, based upon city’s grossly negligent failure to institute litigation hold and consequent destruction of relevant hard copy documents
Nature of Case: Breach of contract, negligent misrepresentation
Electronic Data Involved: Email printouts and other hard copy documents
Key Insight: Denying defendant’s motion for a new trial, court concluded that adverse inference jury instruction based upon defendant’s mistaken failure to suspend document retention policy that deleted email every 30 days was not misleading or unduly prejudicial
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: Court granted defendants’ motion for sanctions and dismissed case with prejudice because, among other things, plaintiffs had failed to preserve relevant electronic data that plaintiffs knew were critical, and it would be impossible for defendants to defend the case without the electronic data that was not produced and no longer available
Nature of Case: Business sued competitors for defamation and unfair competition
Electronic Data Involved: Electronic data
Key Insight: Court denied plaintiffs’ motion for a preservation order, finding that plaintiff had not made a showing of a significant threat that documents would be lost or destroyed absent entry of an immediate order, and concluding that the regular procedures for discovery (including the court’s Electronic Discovery Guidelines) were sufficient and appropriate
Nature of Case: False Claims Act
Electronic Data Involved: Electronic evidence
Key Insight: Court denied inmate’s request to preserve videotapes allegedly showing he was denied food trays because they were irrelevant to inmate’s claims; complaint alleged that he was denied medical treatment and should be transferred to another facility, not that he was denied food trays
Nature of Case: Inmate sought injunctive relief transferring him to a different facility
Electronic Data Involved: Videotape
Key Insight: Where there was no evidence that server logs were erased in bad faith and facts suggested that defendant was, at most, merely negligent, since it took reasonable steps to preserve relevant data — it retained and consulted with technical expert; on advice of its expert, it made a copy of the relevant server logs on CDs that could not be overwritten; it stored copies of the data on its server; and it made the data on the server available for inspection by plaintiff prior to the time it was overwritten — and where plaintiff was unable to demonstrate any real prejudice from the loss of some metadata in server logs, magistrate judge found no basis for spoliation sanctions of any kind and recommended denial of plaintiff’s sanctions motion
Nature of Case: Parties asserted claims under Computer Fraud and Abuse Act and the Electronic Communications Privacy Act, each arguing that the other had obtained unlawful access to databases
Electronic Data Involved: Metadata; server logs
Key Insight: Conviction of Arthur Anderson for obstructing an official proceeding of the SEC affirmed; conviction was based on government’s allegations that, in order to protect the firm and the firm’s largest single account (Enron), Anderson ordered a mass destruction of documents to keep them from the hands of the SEC; Anderson unsuccessfully attempted to cloak the destruction of documents under the auspices of its document retention policies
Nature of Case: Criminal charge of obstructing an official proceeding of the SEC
Electronic Data Involved: Email and hard copy documents
Key Insight: Court denied motion to compel production of defendant’s hard drives so that plaintiff’s computer forensics expert could search them for deleted emails since there was no evidence that defendant had consciously or purposely deleted emails and plaintiff had only “suspicions and allegations” which did not justify the costly and burdensome search requested
Nature of Case: Age discrimination
Electronic Data Involved: Deleted email
Key Insight: Court granted plaintiffs’ ex parte application for leave to take immediate discovery from defendants’ Internet Service Provider, whose subscriber activity log files would allow plaintiffs to discover each defendant’s true name, address and other identifying information
Nature of Case: Copyright infringement
Electronic Data Involved: ISP’s subscriber activity logs
Key Insight: Court denied plaintiff’s motion to revise earlier court order denying production of computer hard drives for review by forensics expert, declining to adopt the law of Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003) and finding that defendant had violated no duty to preserve since emails were deleted according to routine policy and at the time she filed the complaint, plaintiff made no request that emails be preserved
Nature of Case: Age discrimination
Electronic Data Involved: Deleted email
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