Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?
Nature of Case: Class action challenging constitutionality of strip- search policy
Electronic Data Involved: Emails
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 declined to compel government to undertake ?seemingly redundant and unquestionably burdensome? search of 15 disks in witness?s possession where defendant failed to show that documents on disk materially varied from documents already searched and reviewed by government and where government had produced responsive documents discovered in that search pursuant to Rule 16 obligations
Nature of Case: Securities fraud and conspiracy
Electronic Data Involved: Computer disks
Key Insight: Where defendants failed to establish custodians? possession of relevant emails beyond speculation or vague assertions, and where responding party already produced ?voluminous amounts of email,? court declined to compel production of emails from either custodian
Nature of Case: Breach of contract (non-conforming goods)
Electronic Data Involved: Emails
Key Insight: Where defendant produced relevant emails from targeted custodians but where plaintiff sought all emails mentioning his name and where additional searching would cost $300,000, court declined to compel production of additional emails; where emails were produced in hard copy and relevant metadata could not be seen, court ordered defendants to ?determine feasibility? of electronic production and to produce in electronic form ?absent unusual circumstances?; court denied motion to compel generally where plaintiff?s requests were overbroad and unreasonable in their scope
Nature of Case: Employment discrimination
Electronic Data Involved: Emails, ESI
Key Insight: Where defendants failed to timely respond to discovery requests, failed to respond to two motions to compel, and where individual defendant testified he made no attempt to look for files or emails in response to discovery requests, Court granted motion for sanctions and issued order setting final deadline for production, barring all of defendants? objections to production except attorney-client privilege, fining defendants $1,000 and ordering payment of plaintiffs? attorney?s fees
Nature of Case: Suit for damages resulting from improper strip search
Electronic Data Involved: Emails, ESI
Key Insight: Where defendants failed to preserve laptop by continued use and by running defragmentation program, court imposed sanction of fees and costs and precluded defendants from making particular arguments that became unverifiable as result of failure to preserve; where forensic examination revealed creation of false evidence on laptop, court ordered accused defendant to show cause why matter should not be referred for prosecution
Nature of Case: Wrongful termination, discrimination
Electronic Data Involved: Laptop
Key Insight: Special Master recommended production of un-redacted source code repository, development ?twiki? and operational versions of programs at issue to experts and plaintiff?s counsel where access to current versions was ?reasonable? before experts drafted reports and where prior orders did not prohibit it; Special Master also recommended in-person confirmation that production included all required information as kept in usual course of business
Nature of Case: Theft of trade secrets
Electronic Data Involved: source code repository, development “twiki”
Key Insight: Court declined to compel compliance with subpoena seeking forensic image of third-party competitor?s computer where third party asserted it had no relevant documents on its computers, where an expert?s search confirmed that assertion and where plaintiff failed to establish third party?s possession of documents sought; regarding plaintiff?s claim that defendant?s search was incomplete where it did not include titles or phrases from documents not included in the complaint, court ordered meet and confer regarding supplemental search terms and for third party to allow forensic expert to conduct search
Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract
Electronic Data Involved: ESI, hard drive
Key Insight: Court declined to find waiver of privilege where privileged portion of email was inadvertently produced amidst 2,300 pages and where defendant took immediate action to assert privilege, reasserted privilege at deposition, and produced a revised privilege log within five days; court also noted lack of prejudice to plaintiffs
Nature of Case: Wrongful termination
Electronic Data Involved: Privileged email
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