Key Insight: Court said 37(e) doesn’t apply when recording was intentionally deleted. Adverse inference granted for plaintiff’s deletion of an audio tape, despite its subsequent recovery and production from a hard drive backup.
Nature of Case: sexual harassment at work
Electronic Data Involved: audio tape, hard drive backup
Keywords: adverse inference, over-preservation concerns
Key Insight: no intentional destruction of evidence, mere negligence in not maintaining record of accidents in Qualcomm/PeopleNet
Nature of Case: negligence, loss of consortium, punitive damages
Electronic Data Involved: Qualcomm data, PeopleNet server data
Keywords: Spoliation
Key Insight: plaintiff is seeking notices of litigation sent to co-insurers by defendant and defendant claims work product and privilege.
Nature of Case: MDL against drug companies for damages for allegedly contaminated blood products.
Electronic Data Involved: post-litigation communications with co-insurers and re-insurers.
Keywords: work product, privilege, notice to insurers, scope of coverage
Key Insight: Whether a determination of an inadvertent production of documents was erroneous or that the attorney didn’t follow reasonable steps to prevent disclosure.
Nature of Case: Personal Injury, insurance bad faith
Electronic Data Involved: Inadvertently produced documents, produced work product/ACP
Keywords: work product, inadvertent disclosure, claw back, reasonable steps to avoid disclosure
Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: Waiver of privilege for documents inadvertently posted to publicly accessible Box.com location
Nature of Case: insurance coverage litigation
Electronic Data Involved: Box.com uploads
Keywords: Box.com, privilege waiver, publicly accessible, account permissions, file sharing
Identified State Rule(s): Va. Sup. Ct. R. 4.1(b)(6)(ii)
Identified Federal Rule(s): FRE 502(b)
Key Insight: Predictive coding models are legitimate, and document review can stop when the burden outweighs the benefits.
Nature of Case: wage and hour class action
Electronic Data Involved: archived email
Keywords: privilege log, predictive coding,
Key Insight: inadequate search and production, misrepresentation, failure to supplement, follow-up, failure to disclose
Nature of Case: patent infringement
Electronic Data Involved: email, board meeting minutes, investor presentations
Keywords: monetary sanctions, needless burden, late disclosures, post-settlement order, misrepresentation, motion to show cause
Key Insight: Service provider failed to preserve ESI
Nature of Case: ERISA action
Electronic Data Involved: ESI contained on servers
Keywords: failure to preserve, servers, service provider, inherent power authority
Key Insight: proportionality
Nature of Case: class action
Electronic Data Involved: backup tapes
Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance
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