Other Federal Rule(s) of Civil Procedure and/or Evidence Rule: FRCP 37(c)

Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)

Key Insight:

Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.

The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails, Metadata, PDFs

Case Summary

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

Case Summary

Edwards v. Junior State of Am. Found. (E.D. Tex. 2021)

Apr 23 2021

Key Insight: At issue were “racist and homophobic Facebook messages” one high school student allegedly sent to another high school student (plaintiff), both of whom were members of the defendant’s youth organization. Plaintiffs provided a partial .jpeg image (screenshot) of the alleged message and defendant requested additional ESI to authenticate the messages, namely HTML or JSON files, and associated metadata. Plaintiffs never objected to the discovery requests and failed to produce any documents for over a year. Plaintiffs then admitted through a digital forensics experts that the Facebook account had been permanently deleted and the native versions of the alleged messages had been destroyed. The court declined to dismiss the case under Rule 37(b)(2)(A) but applied Rule 37(e), finding that the native messages were relevant ESI and were deleted around the time plaintiffs had a duty to preserve them, and they could not be adequately replaced by the available screenshots. Therefore, plaintiffs would be precluded from offering any evidence about the alleged messages.

Nature of Case: Civil Rights

Electronic Data Involved: Facebook Messages

Case Su m mary

Milke v. City of Phoenix (D. Ariz. 2020)

Oct 30 2020

Key Insight: The court dismissed plaintiff’s civil rights action based on spoliation of physical and ESI evidence, and for failure to submit complete and accurate discovery responses. The court previously sanctioned plaintiff for spoliation of evidence and determined that lesser sanctions short of dismissal could not cure the prejudice to defendant. Plaintiff, her agents, and her counsel failed to preserve website and social media sites and took affirmative steps on multiple occasions to destroy the evidence after litigation became reasonably foreseeable.

Nature of Case: Civil Rights Act

Electronic Data Involved: Social media and websites

Case Summary

Tag:Other Federal Rule(s) of Civil Procedure and/or Evidence Rule: FRCP 37(c)