Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion
Nature of Case: Construction litigation
Electronic Data Involved: ESI
Key Insight: Court denied motion to compel metadata associated with hard copy emails where government established the metadata was not reasonably accessible because of substantial and prohibitive burden and cost; court denied motion without prejudice leaving room for plaintiff to re-file her motion and establish a factual bases for her demand and noted that if such a motion were granted in future, plaintiff would bear the cost
Nature of Case: Employment litigation
Electronic Data Involved: Metadata associated with hard copy emails
Key Insight: Court denied motion for protective order since record was incomplete, but ordered parties to meet and confer to develop a proposed discovery plan; court set forth specific instructions regarding preservation of documents to be observed by parties until they reached agreement on preservation plan
Electronic Data Involved: Email, hard drives, metadata, and other forms of electronic documents
Key Insight: Court denied plaintiff’s motion to compel production of “electronic versions of all documents produced in discovery, including metadata,” since plaintiff failed to comply with local procedural requirements for motion and because plaintiff never specified electronic format in original discovery requests but instead merely asked defendants for such production subsequently
Nature of Case: Breach of contract, unjust enrichment, misappropriation of trade secrets
Electronic Data Involved: Electronic versions of all documents produced in discovery, including metadata
Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD
Nature of Case: Plaintiff alleged bad faith breach of insurance agreement
Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account
Key Insight: Court granted motion to compel on variety of e-discovery topics and ordered defendant to allow plaintiffs? expert reasonable access to (1) phone system and backup system for purpose of recovering inadvertently overwritten phone logs and (2) appropriate personal computers or computer network in order to search for particular documents; plaintiffs further allowed to take Rule 30(b)(6) deposition concerning defendant?s computer network, phone system, and document retention and destruction practices
Nature of Case: Plaintiffs alleged violations of the Fair Labor Standards Act
Electronic Data Involved: Email and other ESI
Key Insight: Where forensic inspection of plaintiff?s laptop and disks showed evidence of tampering, including: deleted files, system date and time manipulations, access histories showing that various relevant documents were accessed after court?s order and before plaintiff?s second deposition, and other fragments of relevant documents and emails that had not been produced, and plaintiff’s explanations “verge[d] on the absurd,” court found that plaintiff had engaged in an egregious pattern of misconduct, dismissed complaint with prejudice, and invited defendant to submit an application for costs and attorneys? fees
Nature of Case: Wrongful termination
Electronic Data Involved: Laptop; drafts of plaintiff’s resume
Key Insight: Where one defendant failed to comply with court’s orders regarding forensic inspection and copying of hard drives, and there was evidence of data spoliation and physical tampering with computer hardware, court concluded that default judgment was appropriate sanction and also ordered the defendant to pay the reasonable attorney fees and costs that its misbehavior caused plaintiff to incur
Nature of Case: Insurance fraud, insurance coverage
Electronic Data Involved: Various hard drives and backup drives
Key Insight: Court denied plaintiff?s request that defendants produce metadata for all records maintained in electronic form produced to date, where plaintiff did not demonstrate a particularized need for metadata, the parties had no agreement about the format of production of electronic files, and plaintiff did not seek metadata until months after defendants had produced hard copy and electronic copies of documents; if plaintiff still desired metadata, court suggested plaintiff identify specific documents for which it was needed
Nature of Case: Antitrust and anti-competitive conspiracy claims
Electronic Data Involved: Metadata
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