Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so
Nature of Case: personal injury and liability
Electronic Data Involved: plaintiff’s cell phone and text messages
Keywords: spoliation, text messages, phone records, cell phone, preservation
Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.
Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.
Nature of Case: Trademark Infringement, Breach of Contract
Electronic Data Involved: Email
Key Insight: Failure to produce; Sanctions; Proportionality
Nature of Case: Trademark & Copyright infringement
Electronic Data Involved: Hard copy; correspondence; email
Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;
Key Insight: Defendant had no duty to preserve the allegedly spoliated video for the almost two years before the filing of the lawsuit because there was no indication Plaintiffs intended to pursue litigation. Plaintiffs failed to present evidence indicating the allegedly spoliated video was relevant to this litigation which would trigger a duty to take reasonable steps to preserve it. No sanctions are warranted.
Nature of Case: Slip and Fall Liability, Personal Injury
Electronic Data Involved: Surveillance Video
Key Insight: whether the issue of spoliation could be brought before the jury to decide if evidence was withheld and if that was justified
Nature of Case: personal injury, motor vehicle
Electronic Data Involved: Log books of defendant
Keywords: spoliation, jury instruction, question of law/fact
Key Insight: spoliation of video evidence requested by plaintiff
Nature of Case: Slip and fall liability
Electronic Data Involved: Surveillance camera footage
Keywords: spoliation, surveillance, sanctions
Key Insight: Former attorneys sanctioned (firm and individually) for discovery failures during representation. Court determined they had been denied due process and sanctions should not have been imposed.
Nature of Case: Trade Practices, Unfair Competition, Tortious Interference
Electronic Data Involved: Various Items in Discovery
Keywords: discovery sanctions, individual attorneys, due process, notice
Key Insight: Plaintiffs filed a Motion to Compel Production of Documents and Request for Sanctions. The documents sought were specific emails. Opposing the Motion, Defendant argued that it was untimely as it was submitted four months after the discovery deadline, and that the emails sought were not responsive to Plaintiff’s earlier document (discovery) request. The Court denied Plaintiffs’ Motion.
Nature of Case: Intellectual Property, Trade Secrets
Electronic Data Involved: Email
Key Insight: withholding discovery on the basis that forensic imaging isn’t under the scope
Nature of Case: trade secrets, unfair trade practices, unfair competition
Electronic Data Involved: Defendant’s laptop and associated harddrives
Keywords: scrubbed metadata, forensic imaging, hard drives, scope of discovery, bad faith litigation
Key Insight: defendants perpetrated fraud and acted in bad faith when not disclosing test results of defective product
Nature of Case: product liability
Electronic Data Involved: product test results that were not disclosed
Keywords: fraud, bad faith, disclosure, confidentiality
Identified Local Court Rule(s): Maricopa county local practice rule 2.19, 5.4
Identified State Rule(s): 26(c)(1), 26(c)(1)(G), 26(c)(4)(A)
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