Key Insight: Failure to fully respond to discovery requests, inability to ensure the production was responsive to discovery requests
Nature of Case: wage-and-hour
Electronic Data Involved: electronic records
Keywords: false representation, attorneys’ fees, egregious
Key Insight: Whether deleted ESI and destroyed notebooks were relevant and, if so, whether there is sufficient evidence to find that spoliation was intentional or resulted in prejudice; whether sanction of reasonable costs is appropriate
Nature of Case: contract dispute
Electronic Data Involved: deleted e-mail, deleted electronic records, hard-copy notebooks
Keywords: spoliation, sanctions, notebook, litigation hold, bad faith, prejudice, deleted, legal hold, negligence, retention policy, backups
Key Insight: Sanctions inappropriate because video was made available well before trial
Nature of Case: False arrest, excessive force
Electronic Data Involved: video
Keywords: lack of evidentiary support, surveillance video
Key Insight: Documents in plaintiff’s girlfriend’s possession could not be compelled, because the girlfriend refused to produce them.
Nature of Case: Civil Rights action
Electronic Data Involved: documents held by third party
Keywords: practical ability test, proportionality, third party subpoena
Key Insight: Whether FRE 502 applies, whether production was inadvertent, interplay between FRE 502 and clawback agreement, whether production was completely reckless, specificity requirements of clawback agreement
Nature of Case: breach of contract
Electronic Data Involved: e-mail
Keywords: reckless, clawback agreement, waiver, privilege, inadvertent production, court order, log
Key Insight: A different office overwrote the recordings, and thus it would be unjust to punish defendant for something they did not do. Moreover, there was no notice, and the recordings were overwritten as a normal course of business.
Nature of Case: Excessive force, 4th/5th amendments
Electronic Data Involved: Recordings of radio calls
Keywords: Notice of duty to preserve, safe harbor, spoliation sanctions, intent to deprive, failure to act
Key Insight: No spoliation because no showing that “either Defendants or their counsel acted” with an “intent to deprive” merely that there was “confusion and ineptitude.”
Nature of Case: breach of licensing agreement
Electronic Data Involved: business laptop and several external drives
Keywords: intent to deprive, spoliation, evaluate the reasonableness of preservation efforts.
Key Insight: Sanction must be proportional to loss, loss was mitigated by testimony about the contents and other notes
Nature of Case: Tortious interference, assault, battery
Electronic Data Involved: Audio recording
Keywords: Taylor Swift, audio recording, KYGO, radio, meet and greet
Key Insight: whether adverse inference is warranted
Nature of Case: workplace discrimination
Electronic Data Involved: text messages, email
Keywords: relevance, prejudice, obligation to preserve, intent to deprive, gross negligence, inherent authority, sanctions, spoliation, fees, costs, adverse inference, bad faith, willfully
Key Insight: Despite lack of sanctions due to the evidence being available in other ways, automatic deletion of emails is not best practice.
Nature of Case: Sexual harassment
Electronic Data Involved: Deleted Emails
Keywords: Automatic deletion, Susan Blood,
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