Key Insight: Judgment vacated and new trial ordered for deliberate spoliation of relevant emails revealed by credible witness after original trial
Nature of Case: Personal injury
Electronic Data Involved: Emails
Key Insight: Court affirmed order of Magistrate Judge declining request for additional discovery based on Defendant?s alleged violation of the parties? protocol for discovery. Where parties agreed that each would disclose the eight custodians ?most likely? to have discoverable ESI, Plaintiff claimed that Defendant failed to name its VP of North American sales in a ?systematic and pervasive effort? to prevent the disclosure of discoverable documents. Magistrate Judge reasoned that Plaintiff needed to explain why its proposed custodians were better than those identified by Defendant and permitted Plaintiff to conduct a test search at its expense, which uncovered few additional documents. Magistrate Judge held that absent a showing that Defendant violated the protocol, it should be enforced, noting that ?for good or ill? Plaintiff had agreed to limit the searches. Affirming the order, the District Court noted that the protocol required the identification of custodians ?most likely? to have discoverable information (describing the ?before-the-fact perspective?) and not the custodians that IN FACT had the most discoverable ESI and also that Plaintiff had failed to take up the Magistrate Judge?s invitation to provide additional search terms for the test, which may have identified additional information to bolster their position
Nature of Case: Patent Infringement
Electronic Data Involved: ESI from 8 custodians “most likely” to have responsive information
Key Insight: Court denied Plaintiff?s motion to compel a response to his second set of document requests (consisting of 168 pages and 1,027 individual requests), noting several procedural and ?substantive defects,? including that Plaintiff?s requests were ?grossly irrelevant? and sought ?numerous documents that ha[d] nothing to do with the claims or defenses? and disproportional to the case (citing Defendant?s prior production of approximately 1,000 pages of documents), even despite the ?strong federal policy against employment discrimination?; addressing defendant?s motion for sanctions, court concluded that ?Plaintiff?s Second Document Request was unquestionably prepared and served in bad faith and in a conscious effort to impose an unreasonable burden on defendants? and cited Plaintiff?s numerous document requests, violation of two prior discovery orders and other ?obstructive behavior? and granted a protective order relieving defendant of the obligation to respond and ordered that Plaintiff was prohibited from offering or using any document not already produced, that Plaintiff must submit to a medical exam (as was previously ordered) or suffer dismissal of his case, and that Plaintiff would be liable for the attorneys fees incurred by Defendants in addressing the motions resolved in this opinion
Nature of Case: Employment litigation (Title VII, Age Discrimination, ADA, etc.)
Electronic Data Involved: ESI
Key Insight: Although the court found that Defendants breached their duty to preserve certain emails by (1) failing to take reasonable steps to preserve Kelley?s emails, (2) misrepresenting the manner in which the data was lost, (3) misrepresenting that the lost data could not be recovered, and (3) using the laptop in May and August, 2015, the court also found the breach was not intentional and that Plaintiff was only ?minimally harmed? and eventually able to obtain the missing information and thus declined to strike Defendants? pleadings but ordered that Defendants should compensate Plaintiff for the reasonable attorneys? fees and expenses incurred in obtaining the email
Electronic Data Involved: Emails
Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference
Nature of Case: Antitrust
Electronic Data Involved: email
Key Insight: Where the magistrate judge recommended that Defendant?s request for forensic inspection be granted, to be undertaken by a neutral third party, in light of the fact that the information sought ?seem[ed] germane? and because despite ?hesitancy to allow on site inspections ? the level of distrust among the parties ? plead[ed] for such intervention,? the District Court overruled Defendant?s objections, noting that through their distrust and lack of cooperation ?[t]he parties and counsel themselves have created an atmosphere that warrants extraordinary circumstances and establishes good cause for an on-site inspection of Champion?s electronically stored information? and set forth a process by which the inspection would take place, including that the costs would be shifted to the requesting party ?given the nature of the accessibility of the [ESI] sought? (i.e., the information sought included backup and deleted material)
Electronic Data Involved: Forensic inspection of ESI, including backup and deleted material
Key Insight: Where the court concluded that Defendants deliberately failed to preserve evidence ?in order to prevent [Plaintiff] from obtaining the evidence and using it against defendants in litigation? (e.g., by liquidating computers and delaying accessing an email account until emails were deleted by the provider) and lied to the court and to the plaintiff (?Defendants were not merely dilatory or misleading in their litigation tactics; they were affirmatively deceitful?), the court reasoned that while an adverse inference or prohibition on introducing certain evidence may ?level the playing field? it would not sufficiently punish Defendants for their dishonesty, and therefore imposed default judgment as to liability (damages remained to be proven); court?s analysis noted that under Fed. R. Civ. P. 37(e)(2) a specific finding of prejudice is not required where the finding of intent supports the inference that the missing information was unfavorable to the party who destroyed it
Nature of Case: Trade secrets
Electronic Data Involved: Computers, emails
Key Insight: Where Defendant formulated search terms and identified custodians unilaterally before undertaking its search and where plaintiff suspected the results were insufficient based on both the low volume of information produced and the failure to produce certain expected information (based on third parties? productions), the court considered Defendant?s multiple proposals for addressing the issue and determined that starting again, from scratch, was most appropriate; addressing whether the cost was disproportionate, court declined to characterize the costs as ?additional expense,? reasoning that Defendant ?should have resolved these issues before undertaking its unilateral search?
Nature of Case: Patent infringement
Electronic Data Involved: ESI
Key Insight: Specific metrics needed to object to the burden of a key-word search. Defendant objected to document requests on relevancy grounds.
Nature of Case: Contract breach.
Electronic Data Involved: Key-word search of ESI.
Keywords: Cooperation and the negotiation of keywords. Transparency in all aspects of preservation and production of ESI.
Key Insight: Sanctions for delays caused by bad faith reliance on a vendor for a small production.
Nature of Case: discovery delays
Electronic Data Involved: archived e-mail
Keywords: discovery delay, discovery vendor, small production, bad faith
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