Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters
Nature of Case: Insurance coverage
Electronic Data Involved: ESI
Key Insight: Where e-discovery consultant jointly retained by parties reported that three previously undisclosed flash drives had been connected to former employee’s personal computers during the relevant time period, court agreed with plaintiff that consultant should be allowed to image and review the three flash drives but ruled that costs of such review would be borne by plaintiff given the likely limited usefulness of the search
Nature of Case: Misappropriation of confidential information
Electronic Data Involved: Flash drives and other electronic devices used by former employee
Key Insight: Where allegations covered events occurring over past 15 years and defendant produced almost no email in response to 65 document requests and 12 interrogatories, and despite general claim of privilege defendant did not provide a privilege log, court granted plaintiff’s motion and ordered defendant to answer three questions to allow plaintiff and court to evaluate defendant’s claim that it had produced everything: 1) What search terms did you use? 2) What computers or repositories did you search within? and 3) What was the time frame for your search? If questions were not answered fully and completely in 10 days, plaintiff would be allowed to file a new motion for sanctions
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: Court ruled that plaintiff was entitled to a “first review” of results of independent forensic examination of plaintiff’s email account, and that plaintiff and defendants would share equally in cost of restoring and searching plaintiff’s emails, up to a maximum contribution by plaintiff of $1,500
Nature of Case: Family and Medical Leave Act claims
Electronic Data Involved: Plaintiff’s emails
Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments
Nature of Case: Workplace discrimination claims
Electronic Data Involved: ESI, emails
Key Insight: Plaintiff sought to compel Defendant to produce additional documents relevant to their design infringement claims by searching Defendant?s emails and electronic design documents. Defendant argued that this comprehensive search of electronic design documents would be ?overly burdensome, oppressive, and not reasonably calculated to lead to discovery of admissible evidence,? and conducted a reasonable search responsive to Plaintiffs request, but did not explain why and how the comprehensive search would be burdensome. Defendant complied with a stipulation agreeing to specific email search terms and custodians, subject to objections which Plaintiff did not respond to. The court ordered that Plaintiff was entitled to additional discovery of electronic design documents because Defendant did not meet the burden of showing the request was unduly burdensome. However, since Defendant did comply with the stipulation, further email searches were not needed.
Nature of Case: Patent Litigation
Electronic Data Involved: ESI
Key Insight: Court declined to impose sanctions against wireless carrier for employee’s deletion of particular email that referenced collusion, notwithstanding that deletion was intentional and done for the purpose of concealing the contents of the email, because record did not reflect that author of deleted email was in a position to have knowledge of or participate in any collusion between the wireless carriers, and thus plaintiffs could not show that missing email would have been adverse to wireless carrier
Nature of Case: Class action
Electronic Data Involved: Emails
Key Insight: Where defendant had taken “extraordinary step” of handing over to plaintiff’s computer expert a mirror image copy of the company’s email server so that expert could conduct his own search, and none of the mostly irrelevant emails retrieved by expert provided support for plaintiff?s claims, and plaintiff failed to offer convincing evidence that defendant violated an order of the court or intentionally destroyed or concealed relevant evidence, court rejected plaintiff?s motion for spoliation sanctions and ultimately granted summary judgment in favor of defendant, dismissing all of plaintiff?s claims
Nature of Case: Unlawful retaliation and wrongful discharge claims
Electronic Data Involved: Email
Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion
Nature of Case: Disability insurance dispute
Electronic Data Involved: Hard drives, ESI
Key Insight: Where plaintiffs offered 18 emails from “critical custodians” that were produced not by defendant but by a third party as new evidence to support motion for reconsideration of order denying motion to compel, court noted differences in search terms used in respective searches and opined that requests for discovery regarding a party?s discovery efforts should be ?closely scrutinized in light of the danger of extending the already costly and time consuming discovery process ad infinitum?; rejecting plaintiffs’ motion for reconsideration, court observed: ??[T]he Federal Rules of Civil Procedure do not require perfection.? . . . Weatherford has reviewed ?millions of documents and [produced] hundreds of thousands,? comprising ?nearly 4.4 million pages? in this case. It is unsurprising that some relevant documents may have fallen through the cracks.?
Nature of Case: Putative class action alleging securities fraud
Electronic Data Involved: Email
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