Key Insight: Sanctions for attorney’s fees are warranted when computer files are deleted (even if they are recovered) and when a phone is recklessly lost in a “palpably suspicious” incident.
Nature of Case: Corporate management disputes between co-founders
Electronic Data Involved: cell phone contents, computer files
Keywords: spoliation, palpably suspicious, lost phone, ineffective spoliation, reckless failure to preserve
Key Insight: Predictive coding may be used to conserve time and expense where e-discovery expertise applied
Nature of Case: Embezzlement/Fraudulent Transfers Action
Electronic Data Involved: Backup storage tapes of exchange server containing tax-related information
Keywords: “computer-assisted review [tools]” “privileged or confidential information” “universe of documents”
Key Insight: Plaintiff was arrested while police pursuing his brother. Videos from car were mis-labeled and therefore destroyed. Plaintiff could not show bad faith, so no adverse inference instruction.
Nature of Case: civil rights
Electronic Data Involved: Police Car Videos
Keywords: adverse inference; sanctions; bad faith
Key Insight: Sanctions for failure to preserve. Plaintiff did not issue a litigation hold until 23 months after reasonable anticipation of litigation.
Nature of Case: Legal malpractice
Electronic Data Involved: ESI destroyed under plaintiff’s record destruction policies: Backup tapes, routine deletion of emails, erasure of hard drives/email accounts.
Keywords: Preservation, spoliation sanctions, adverse inference charge, litigation hold.
Key Insight: The Village did not preserve the facebook posts or text messages despite having that duty. Court ruled that severe sanctions were warranted including an adverse inference and legal fees.
Nature of Case: discrimination; zoning
Electronic Data Involved: Facebook posts and text messages
Keywords: adverse inference; facebook, texts
Key Insight: Deletion of emails at recommendation of email provider is not deletion with intent to destroy evidence, therefore terminating sanctions are overbroad
Nature of Case: Antitrust
Electronic Data Involved: Deleted emails
Keywords: Theatres, Cinemark, terminating sanctions, Bryan Cranston
Key Insight: Plaintiff threatened legal action, but failed to have it’s vendor stop automatic deletion and did not preserve recrods when email system changed. Defendant was prejudiced by this spoilation. Court allowed witnesses to testify to spoilation and potential contents of those communications.
Nature of Case: incentive programs and Robinson-Patman Act violations
Electronic Data Involved: internal and external communications
Keywords: spoilation; vendor
Key Insight: Adverse inference granted where physical evidence was lost.
Nature of Case: Marine
Electronic Data Involved: notebook/logbook
Keywords: adverse inference
Key Insight: inadvertent destruction of computer after litigation hold not sanctioned
Nature of Case: wrongful termination
Electronic Data Involved: work computer
Keywords: no bad faith
Key Insight: Court concluded defendant had duty to preserve oily substance and was negligent in doing so. Permissive adverse inference instruction granted.
Nature of Case: personal injury
Electronic Data Involved: oily substance plaintiff slipped on
Keywords: adverse inference;
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