Key Insight: District court did not abuse its discretion in refusing to impose spoliation sanctions against defendant university for deletion of former teaching assistant’s email account, where university backed-up the contents of the account onto two CDs before deleting it, and the deletion occurred before the lawsuit was filed
Nature of Case: Employment discrimination, civil rights
Electronic Data Involved: Email
Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct
Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud
Electronic Data Involved: Email and other electronic documents
Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order
Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession
Electronic Data Involved: Email and other ESI
Key Insight: Debtor’s liability to his former employer for willful and malicious misappropriation of trade secrets and for award of sanctions based on his spoliation of evidence were exempted from discharge in bankruptcy; court granted former employer’s motion to lift automatic stay so that trial court could determine the amounts for which debtor was liable and enter final judgment
Nature of Case: Bankruptcy
Electronic Data Involved: Email and confidential business data
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 plaintiff’s motion for spoliation sanctions, finding no basis in the record for concluding that defendant’s failure to preserve email and other materials was so blameworthy that defendant should be deprived, either in whole or part, of the opportunity to defend the case on the merits, and adding: “Perhaps in the fullness of time foreign-based companies doing business in the United States will be held to the same ‘litigation holds’ and other devices now routinely applied by litigants here to make sure pertinent documents and other materials are retained and produced. And perhaps they should be held to the same standards in an era of ever-expanding global trade. Increasingly negligence on the other side of the globe can cause injury locally.”
Nature of Case: Subrogation action against foreign-based shipowner
Electronic Data Involved: Email
Key Insight: Court approved plaintiff’s fee petition and awarded $79,606 in attorneys’ fees and $19,856 in expenses, for a total of $99,462, as sanction for defendant’s intentional destruction of laptop computer
Nature of Case: Misappropriation of trade secrets and breach of employment contract
Electronic Data Involved: Computer
Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email
Nature of Case: Breach of contract
Electronic Data Involved: Email
Key Insight: Where plaintiff stored majority of its documents on third-party servers and failed to make payment to maintain the service, resulting in deletion of relevant documents, court declined to enter default judgment and monetary sanctions but instead would allow lesser sanction of adverse inference instruction, since (1) plaintiff had control, albeit indirectly, over destroyed information; (2) plaintiff was at least negligent in not taking any affirmative steps to preserve documents, and (3) evidence was relevant to defense
Nature of Case: Antitrust, tortious interference with contractual relations
Electronic Data Involved: Documents stored by plaintiff on third-party computer servers
Key Insight: Declining to grant sanction of dismissal since there was insufficient evidence of intentional or bad faith conduct, or adverse inference instruction since it was unclear how relevant the missing email was, court awarded monetary sanctions since Spain?s failure to timely implement adequate litigation hold and failure to conduct timely and diligent search for electronic discovery was negligent and resulted in loss of email; court further directed Spain to complete its forensic search for email records and produce such records on rolling basis
Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill
Electronic Data Involved: Email
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