Key Insight: Attorney client privilege and work product protections for communications from company devices
Nature of Case: employment discrimination
Electronic Data Involved: Company laptop data
Keywords: attorney client privilege, computer forensics, privacy policy, work product
Identified State Rule(s): CPLR 3103
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: email
Nature of Case: Family Business dispute
Electronic Data Involved: email
Keywords: Pattern of delinquent conduct; Complete disr4egard for court orders; failure to preserve; Zubulake
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: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA
Nature of Case: antitrust
Electronic Data Involved: deleted electronic records
Keywords: duty of preservation foreign, foreign government investigation preserve
Key Insight: How much access of a party’s electronic information system does rule 34(a) give a party?
Nature of Case: Trade secrets
Electronic Data Involved: Responsive documents
Keywords: ESI protocol, Forensic images, overly broad
Key Insight: Measures to cure prejudice should be no greater than necessary, but if a party acts with intent to deprive, the court may presume unfavorability, issue an adverse inference, or dismiss and enter a default. You must raise your spoliation motions before summary judgment is ruled on.
Nature of Case: Unlawful termination
Electronic Data Involved: relevant electronic communications and documents
Keywords: prejudice, spoliation, intent to deprive, adverse influence
Key Insight: NDA adequately protects confidential and/or privileged information during forensic examination
Nature of Case: employment discrimination
Electronic Data Involved: email
Keywords: forensic examination
Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.
Nature of Case: Repossession/Ownership
Electronic Data Involved: Files on Computer
Keywords: default judgment, contempt, data wipe
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