Key Insight: Court rejected defendants’ objections to magistrate judge’s December 21, 2008 order imposing sanctions of $99,462, upheld the December 21, 2008 order in its entirety, and ordered defendants to comply with the order by March 3, 2008
Nature of Case: Misappropriation of trade secrets and breach of employment contract
Electronic Data Involved: Computer
Key Insight: Court denied plaintiffs? motions for preliminary injunction and for sanctions, where evidence that defendants had improperly accessed plaintiffs? computers was weak, evidence from forensic inspection of defendants? laptops was ambiguous, and ?most damning? piece of evidence was one defendant?s use of a drive cleaner on laptop after being served with summons and before laptop could be examined; court found that defendant’s proffered explanation for using the drive cleaner was not ?particularly implausible? and observed that plaintiffs could renew sanctions request if evidence later supported it
Nature of Case: Company asserted various claims against former employees, including misappropriation of trade secrets, intentional interference with prospective business opportunity, breach of loyalty and violation of the Computer Fraud and Abuse Act
Electronic Data Involved: Employer-provided laptops; other ESI
Key Insight: District court overruled plaintiff?s objections to magistrate judge?s order denying sanctions and clarifying that defendant was not required to produce ESI in ?native format? or to produce metadata, where limited evidentiary value of producing ?native format? documents with accompanying metadata was outweighed by overly burdensome task of generating such documents
Nature of Case: Breach of insurance contract, unfair trade practices
Electronic Data Involved: APEX files, Lotus Notes email files, and Microsoft Office spreadsheet files
Key Insight: Court imposed monetary sanctions pursuant to Rule 37 for discovery violations related to defendant?s responses to discovery and its inadequate 30(b)(6) deponent, but declined to award spoliation sanction of adverse inference where defendants failed to preserve emails and could not identify blind copy recipients or explain who wrote the emails or to whom they were intended to be sent but where plaintiff failed to show injury resulting from the emails and could not establish that access to the emails or their recipient lists would have been favorable to that showing; court noted, ?the evidence in this case is easily distinguishable from the destroyed evidence in cases where courts have imposed spoliation sanctions?
Nature of Case: False advertising, tortious interference, unfair competition and related claims
Electronic Data Involved: Blind copy email recipients
Key Insight: Court found that defendant waived attorney-client privilege as to specific emails where defendant failed to establish privileged nature of the communications and where defendant failed to properly identify the emails on a privilege log prior to their inadvertent production; court ordered adverse instruction in favor of plaintiffs as spoliation sanction where defendant failed to produce highly relevant hard drives for inspection and where defendants? proffered explanations for the destruction of those hard drives was contradicted and ?lame? in light of defendants? knowledge of their relevance and its duty to preserve
Nature of Case: Breach of contract
Electronic Data Involved: ESI, emails, hard drives
Key Insight: Although expert fees and expenses were not taxable as costs under 28 U.S.C. Sec. 1920, court ruled that, since most if not all of the work performed by Hawaiian Airlines’ computer forensics expert was directly attributable to Mesa’s spoliation of evidence (which was subject of October 30, 2007 decision imposing certain evidentiary sanctions against Mesa), the expert’s fees and expenses of approximately $80,000 would be awarded as an additional spoliation sanction
Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information
Electronic Data Involved: Confidential information stored on secure website
Key Insight: Resolving a number of discovery issues, court denied plaintiff?s motion to compel production of emails and other stored electronic data concerning plaintiff, stating: ?Plaintiff’s bald assertion that there must be more e-mails than the 100 already produced is not persuasive to the court.?
Nature of Case: Gender discrimination, harassment, retaliation and constructive discharge
Electronic Data Involved: Email and other ESI
Key Insight: Finding that District Attorney?s admitted deletion of more than 2,500 emails sought by subpoena constituted ?unexcused, egregious conduct,? court found him in contempt of court and imposed $18,900 in sanctions (representing attorneys? fees); court further found that actions of attorney representing DA in the proceedings were ?unprincipled and dilatory, at best, constituting a deliberate indifference to the Court’s Orders and subpoena,? held him in contempt of court, and ordered that $5,000 of the $18,900 in sanctions awarded against DA was jointly and severally awarded against his attorney
Nature of Case: Civil rights suit against Harris County, Texas, the Harris County Sheriff and several Harris County deputies
Electronic Data Involved: Deleted emails of the District Attorney of Harris County, Texas
Key Insight: Court ordered production of a 30(b)(6) deponent with sufficient knowledge of designated topics and monetary sanctions against defendant where defendants? designated deponent was unable to answer ?the most basic questions? regarding defendants? response to discovery including what computers were searched for documents, what backup tapes or other media was searched, and what backup media was utilized by the company; court stated that deponent had obligation to educate self on designated issues prior to deposition
Nature of Case: Statutory Action arising from 18 U.S.C. ? 2511 (Wiretapping)
Electronic Data Involved: Testimony from 30(b)(6) deponent regarding discovery responses
Key Insight: Where plaintiffs admitted to deletion of electronic data after failing to disable auto-delete function but where deletion was not intentional and where defendants failed to show more than a suspicion of prejudice, court declined to issue order for plaintiffs to show cause why sanctions should not be imposed; court issued warning to plaintiffs that any future loss of data, whether negligent or otherwise, was ?not acceptable? and ordered measures taken against further deletion
Nature of Case: Price fixing
Electronic Data Involved: ESI, email
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