King v. Fleming, No. 17-3095 (10th Cir. Aug. 15, 2018)
Key Insight: Sanctions were appropriate for a fraudulently edited email entered into evidence
Nature of Case: Judge removal
Electronic Data Involved: E-mails
Am. Mun. Power, Inc. v. Voith Hydro, Inc., No. 2:17-cv-00708 -ALM-EPD (S.D. Ohio June 4, 2018)
Key Insight: Which search terms are to be used to identify responsive ESI
Nature of Case: Construction litigation
Electronic Data Involved: Email and other ESI
Bailey v. Alpha Techs., Inc., No. C16-0727-JCC, 2017 WL 2378921 (W.D. Wash. June 1, 2017)
Key Insight: Court granted motion to compel production of requested ESI in native format: ?Native format production also complies with the Federal Rules of Civil Procedure and this case?s ESI order. Moreover, the Court finds that metadata and native format production are relevant and proportional to the needs of discovery. It is untenable to assert in this technology-driven age of litigation that images of electronic documents provided in TIFF and PDF form offer all of the relevant information possible. The metadata that is not visible in TIFF and PDF productions, but is visible in native format production, is relevant information. Therefore, the Court GRANTS Plaintiff?s motion on this issue.?
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Zamora v. Stellar Mgmt. Grp., Inc. , 3:16-05028-CV-RK, 2017 WL 1362688 (W.D. Mo., Mar. 11, 2017)
Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature
Nature of Case: Employment litigation
Electronic Data Involved: ESI from cellular phones, Facebook
Brown v. Albertsons, LLC, 2:16-cv-01991-JAD-PAL, 2017 WL 1957571 (D. Nev. May 10, 2017)
Key Insight: In response to Plaintiff?s Motion for Spoliation Sanctions, the Court engaged in an analysis of four types of available sanctions: Evidentiary, Monetary, Dispositive and Adverse Inference Instructions. The Plaintiff argued the Defendant intentionally destroyed evidence in the form of an incident report, a surveillance video and correspondence between Defendant and a third-party claims adjuster. The Court found that information from the incident report and the lost emails with the claims adjuster were available elsewhere and that the loss of the video surveillance was due to a system-wide outage that affected several stores. The Court found no evidence that Defendant acted intentionally or recklessly and denied Plaintiff?s request for Dispositive Sanctions but instead imposed lesser Evidentiary Sanctions by allowing the Plaintiff to introduce evidence that the incident report was lost or destroyed, that the Defendant failed to preserve the third-party communications and that Defendant?s video system failed to record the incident.
Nature of Case: Slip and Fall
Electronic Data Involved: ESI, including video
Teal v. Jones, No. 2015-CA-00259-COA, 2017 WL 58824 (Miss. Ct. App. Jan. 3, 2017)
Key Insight: Spoliation instructions to jury were erroneous and the case was reversed and remanded for a new trial. No evidence of spoliation was presented at trial and hence spoliation instructions were improper. The Court also went on to discuss the spoliation evidence since it could arise in a new trial. The Court found no spoliation with regard to the deleted emails since Plaintiff?s deletion of emails occurred before she could have anticipated a lawsuit. The Court found that the disposal of Plaintiff?s laptop and sale of her desktop might be spoliation of evidence if there is reason to believe the deleted emails could be recovered from either computer?s hard drive. If Defendant can present evidence that the emails could have been recovered then the court may grant her an instruction on spoliation.
Nature of Case: Alienation of affections
Electronic Data Involved: Emails, hard drives
Brand Servs., LLC v. Irex Corp., NO: 15-5712, 2017 WL 67517 (E.D. La. Jan. 5, 2017)
Key Insight: Plaintiff filed motion to compel the production of all computers or a forensic image of such computers of three former employees currently employed by Defendant. Plaintiff accused one employee, an informational technology specialist, of transferring files containing trade secrets and proprietary information to an external hard drive and later to his laptop furnished by Defendant. Plaintiff also sought the production of a forensic image of Defendant?s server. Defendant argued that direct investigation of these devices was too broad a scope and should be limited by an ?electronically stored information protocol.? The Court agreed that Plaintiff?s request was overly broad and disproportional and ordered both parties to submit a draft ESI protocol using key word searches so as to control costs and to keep discovery proportional to the needs of the case.
Nature of Case: Violation of non-compete agreement, Uniform Trade Secrets Act
Electronic Data Involved: ESI
Agility Pub. Warehousing Co. v. Dep?t of Defense, 14-1064 (JDB), 2017 WL 1214424 (D.D.C. Mar. 30, 2017)
Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established
Nature of Case: APA Action related to Touhy request
Electronic Data Involved: Email
Andrews v. Autoliv Japan, Ltd., 1:14-cv-3432-WSD, 2017 WL 2805868 (N.D. Ga. June 29, 2017)
Key Insight: Court denied Defendant?s request for e-discovery costs. Defendant?s vendor provided services to create optical character recognition (?OCR?) image and text files for Defendant?s productions. The Court concluded that the costs of creating electronic copies of documents are recoverable but the costs of creating a dynamic, indexed and searchable database that allows counsel to search for and within the documents are not recoverable. The Court denied Defendant?s recovery of costs for the technical services provided by their e-discovery vendor.
Nature of Case: Taxable costs
Electronic Data Involved: ESI
Selective Ins. Co. of the Se. v. RLI Ins. Co., 5:12CV2126, 2017WL 1206036 (N.D. Ohio Mar. 31, 2017)
Key Insight: Court agreed with recommendation of magistrate judge and held costs incurred by a non-party for compliance with an order compelling production are reimbursable. The magistrate judge ordered the Non-Party to submit a cost estimate for reviewing the documents, preparing a privilege log and producing the non-privileged documents. The cost estimate submitted was over $120,000. Defendant then presented a pared down document request and the magistrate judge issued a Modified Subpoena. The Court accepted the magistrate judge?s recommendation and ordered Defendant to pay $14,174.32 for the costs to Non-Party of complying with the Modified Subpoena stating that Defendant ?was the recipient of the fruits of Non-Party[?s] labor.? The Court also agreed with the magistrate judge that non-parties are not protected by the work product doctrine.
Nature of Case: Non-party compensation for document production
Electronic Data Involved: emails and non-electronic documents