Key Insight: Failure to issue a litigation hold, misrepresentation that a hold had been issued, spoliation of evidence, attorney fee award.
Nature of Case: water-protection law violation
Electronic Data Involved: Not specified. However, likely, email and other electronic records.
Keywords: spoliation, litigation hold, lodestar calculation, special master.
Key Insight: Sanction and adverse inference inappropriate because nothing lost/destroyed was highly probative
Nature of Case: Excessive force
Electronic Data Involved: emails, reports
Keywords: adverse inference
Key Insight: Whether FRCP 37(e) applies where the duty to preserve does not arise out of the anticipation or conduct of litigation, whether sanctions issued under a court’s inherent power were appropriate
Nature of Case: False Claims Act
Electronic Data Involved: country of origin data
Keywords: Country of Origin documentation, adverse inference, Trade Agreements Act, inherent power, overwrite, direct proof or disproof
Key Insight: Defendant has inadequate production even when supplemented. Judge ordered meet-and-confer to work out some of the disagreements. Judge did not give either side sanctions.
Nature of Case: Breach of Contract; Consumer Fraud
Electronic Data Involved: E-mail; Electronic Database
Keywords: Meet-and-confer; Inadequate Production; Supplemental Production
Key Insight: Slow responses to discovery; withholding information; Discovery fraud
Nature of Case: Personal Injury
Electronic Data Involved: Not specifically stated “documents”
Keywords: Attorney Fees; Bad Faith; Withholding information; Misconduct; Sanctions must be compensatory not punitive; Court’s inherent authority; But-For test
Key Insight: Arrest did not trigger a duty for defendants to preserve video of alleged beating before arrest
Nature of Case: Wrongful arrest
Electronic Data Involved: video, electronic photos
Keywords: triggering duty to preserve
Key Insight: Can the court order additional discovery if a party destroys evidence? Is a prejudice ruling required in a destruction of evidence case?
Nature of Case: Retaliation and discharge
Electronic Data Involved: text messages, emails, social media messages
Keywords: Prejudice, Destruction of evidence, Social media, Text messages
Key Insight: Court said 37(e) doesn’t apply when recording was intentionally deleted. Adverse inference granted for plaintiff’s deletion of an audio tape, despite its subsequent recovery and production from a hard drive backup.
Nature of Case: sexual harassment at work
Electronic Data Involved: audio tape, hard drive backup
Keywords: adverse inference, over-preservation concerns
Key Insight: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Key Insight: Intentionally deleting ESI is different from failing to preserve and falls under a court’s inherent authority, not FRCP 37(e).
Nature of Case: Sexual harassment
Electronic Data Involved: Recorded conversation
Keywords: Spoliation sanctions, recording, DFS, department of financial services
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