Key Insight: Where plaintiff failed to sufficiently establish existence or relevance of emails allegedly spoliated or that defendants alleged abuses resulted from willful misconduct or gross negligence, trial court declined to impose sanctions; court of appeals affirmed
Nature of Case: Breach of contract, promissory estoppel, interference with a contract
Electronic Data Involved: Email
Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log
Nature of Case: Bad faith failure to defend or indemnify
Electronic Data Involved: Notes made in electronically stored case file
Key Insight: Appellate court reversed trial court?s denial of motion to dismiss complaint as sanction for spoliation, and granted motion to dismiss, where defendant’s expert found that numerous files, images, and folders, as well as some history of the plaintiff’s internet usage had been deleted between date defendant demanded inspection of plaintiff’s computer and date of inspection, and evidence showed that defendant suffered severe prejudice
Nature of Case: Defamation
Electronic Data Involved: Files on plaintiff’s home computer
Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information
Nature of Case: Trademark infringement
Electronic Data Involved: Goldmine customer relations management database
Key Insight: Where defendants converted ESI from their original format, which had been searchable and sortable, into PDF files which did not have these capabilities, court cited Advisory Committee Notes to the 2006 amendment to FRCP 34(a)(1)(A) and found that defendants violated Rule 34 by producing documents which were not searchable or sortable, notwithstanding that plaintiffs did not request the documents in native electronic format; court ruled on various other discovery disputes and awarded plaintiffs monetary sanctions in light of defendants’ “purposeful foot dragging on discovery” and resulting prejudice to plaintiffs
Nature of Case: Class action lawsuit regarding California’s treatment of juvenile wards and parolees
Electronic Data Involved: Databases and other ESI
Key Insight: Where defendants were able to produce responsive emails from plaintiff?s email account, but could produce no other emails from accounts of various defendants or from Department of State due to routine ?purging? procedures that included closing individuals’ email accounts, deletion of files from their office computers after they leave employment, and routine deletion of files from State’s email servers, court denied plaintiff?s motion for spoliation sanctions finding that defendants had acted in good faith and that plaintiff had not met threshold showing of relevancy of any specific evidence that was lost
Nature of Case: Discrimination based on race and national origin, wrongful termination
Electronic Data Involved: Email
Key Insight: Where plaintiff failed to produce requested expert information in searchable format, pursuant to court order, until after defendants filed a motion for sanctions, but where plaintiffs failures were not willful and where prejudice to defendants was minimal, court ordered plaintiff to bear costs of defendants? motion to compel but declined to strike plaintiffs? expert or impose other severe sanctions
Nature of Case: Patent lawsuit
Electronic Data Involved: Expert’s report in searchable format
Key Insight: Plaintiff’s grossly negligent failure to produce laptop computer earlier in litigation reflected blatant disregard of her discovery obligations; court granted post-trial motion for sanctions and awarded defendant its fees and costs for: drafting pre-trial spoliation motion concerning plaintiff?s laptop; addressing plaintiff’s last-minute discovery of laptop; submissions to court regarding data retrieval issues and how defendant?s pretrial spoliation motion was affected; and drafting a new motion for sanctions based on plaintiff’s misconduct with respect to laptop and prejudice to defendant
Nature of Case: Employment discrimination
Electronic Data Involved: Laptop
Key Insight: Where plaintiff abused discovery process by, among other things, failing to produce email attachments and belatedly advising defendant and court that certain emails were unrecoverable, court imposed monetary sanctions against plaintiff and granted request for limited inspection of computer hard drives used by certain of plaintiff’s employees to be conducted by independent forensic examiner
Nature of Case: Breach of contract, account stated, open account, and unjust enrichment
Electronic Data Involved: Computer hard drives of plaintiff’s employees
Key Insight: Where defendant’s failure to preserve emails was merely negligent and plaintiff did not establish that lost evidence would have supported her claims, court denied plaintiff?s motion for default judgment or adverse inference instruction as spoliation sanction; however, since second forensic examination of hard drive was necessitated solely by defendant’s misstatement, court ordered defendant to cover its cost
Nature of Case: Race discrimination and discrimination under ADA
Electronic Data Involved: Emails, hard drive
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