Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: Sanctions not found because VHS degrades naturally and missing reports were not proven relevant
Nature of Case: false arrest
Electronic Data Involved: video VHS, lost original tape, paper documents
Keywords: 37(e) ignored, lost original tape, missing reports, culpable state of mind
Key Insight: Even if documents are recovered from deletion, sanctions may still be proper, sanctions are proper when failing to adhere to litigation holds, sanctions based on perjury are not criminal charges of perjury, extreme bad-faith litigation allows for cost shifting of attorney’s fees
Nature of Case: Litigation misconduct
Electronic Data Involved: Electronic files
Keywords: 7 million, sanctions, unusually deplorable, perjury, bizarre, rat droppings
Identified State Rule(s): “American Rule”
Key Insight: Court ruled that it could not be inferred from mere negligence that the recording would be favorable to defendants. Other sources of information/discovery were available as well. An application of Rule 37(e) would make no difference (the rule was not cited).
Nature of Case: Civil rights
Electronic Data Involved: Deleted cell phone video
Keywords: spoliation, sanctions, adverse inference
Key Insight: Spoliation,
Nature of Case: Trade Secrets
Electronic Data Involved: E-mail accounts, electronic evidence, electronic storage devices, personal and work computers, cloud storage accounts
Keywords: Spoliation, Hot Sheets,
Key Insight: Trial court exercises discretion to impose sanctions (no Rule 37(e) used), no bad faith found when requesting footage of the incident where footage surrounding the incident was deleted due to normal retention policies (negligence at best)
Nature of Case: Personal injury (slip and fall)
Electronic Data Involved: Store video footage
Keywords: slip and fall, constructive notice, cable wire, summary judgment
Key Insight: intentional destruction of surveillance camera footage
Nature of Case: prisoner civil rights action
Electronic Data Involved: surveillance camera footage
Keywords: spoliation
Key Insight: Even with a litigation hold, if a party would have made no efforts to obtain a serial number, bad faith is not found. Sloppy paperwork may be considered gross negligence in a totality of the circumstances. Rule 37(e) was not used.
Nature of Case: Excessive police force
Electronic Data Involved: Electronic data (Taser usage records)
Keywords: taser, cartridge, serial number, spoliation
Key Insight: Spoliation of evidence via a mobile device. Case filed prior to new Rule 37(e) enactment, so, rule does not apply.
Nature of Case: Fair Labor Standards Act violation
Electronic Data Involved: e-mail account records
Keywords: “old” bad faith analysis, misdirection and deception, 2-step verification.
Key Insight: Service provider failed to preserve ESI
Nature of Case: ERISA action
Electronic Data Involved: ESI contained on servers
Keywords: failure to preserve, servers, service provider, inherent power authority
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