Key Insight: Where defendant sought to avoid running the searches proposed by plaintiff based on irrelevance, overbreadth and undue burden, the court found that defendant had failed to meet the burden to show cause for entry of a protective order and granted plaintiffs? motion to compel
Nature of Case: Breach of contract
Electronic Data Involved: Emails
Key Insight: Failure to institute litigation hold, which resulted in automatic deletion of relevant e-mails as part of defendant’s system-wide upgrade, and defendant’s excessive delay in disclosing such facts, constituted gross negligence; magistrate judge recommended that plaintiff’s motion for sanctions be granted and that trial court issue and adverse inference instruction regarding the destroyed e-mails and award plaintiff its costs in bringing the motion
Nature of Case: Insurance coverage dispute
Electronic Data Involved: E-mail
Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial
Nature of Case: Sex discrimination claims
Electronic Data Involved: Skill login data
Key Insight: Court partly granted plaintiffs? motion to compel, requiring government: (1) to re-produce all documents it had produced in a “locked” password-protected file either as they were kept in the ordinary course or organized and labeled to correspond to document requests, (2) as to other documents government had previously re-produced, to provide an index identifying, by date of production and bates number, which documents each reproduction was meant to replace, and whether any documents were new, and (3) as to documents from which government had redacted on the basis of non-responsiveness and not on the basis of any privilege, to produce unredacted versions of such documents
Nature of Case: Class action concerning government’s detention and removal of immigrants with mental issues
Electronic Data Involved: Various documents related to over 200 detainees, includingi A-file, medical documents, records of proceedings and database information
Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro
Nature of Case: Probate matter
Electronic Data Involved: Computer and cell phone used by decedent
Key Insight: Court declined to dismiss complaint or grant adverse inference instruction as sanction for plaintiffs’ blatant disregard of the discovery process as there was no evidence of willfulness or maliciousness, and instead awarded all attorneys’ fees and costs that defendants incurred as a result of plaintiffs’ dilatory conduct; court further ordered parties to brief issue of whether more severe sanctions should be imposed against plaintiff entity that had failed to produce a single document from its files
Nature of Case: Fraud and related claims
Electronic Data Involved: ESI
Key Insight: Court denied third party’s request for return of allegedly privileged letters between third party and its patent lawyer because third party did not promptly take reasonable steps to rectify the error when it sent a clawback letter 49 days after it discovered the disclosure of at least one of the disputed documents during a Rule 30(b)(6) deposition; court rejected third party?s excuses and stated that third party ?should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request?
Nature of Case: Patent infringement
Electronic Data Involved: Nine attorney letters totaling approximately 58 pages
Key Insight: Where defendants received plaintiff?s production of approximately 3,600 electronic documents less than two weeks before trial was to begin, and defendants were only able to obtain the documents after they arranged for an independent electronic discovery review in response to plaintiff?s prior discovery abuses, court found that the circumstances of case were extraordinary, that plaintiff acted willfully and in bad faith in violating FRCP 26, 37 and the court?s scheduling order, and that analysis of the five relevant factors warranted dismissal of plaintiff?s claims against each defendant with prejudice
Nature of Case: Washington State Securities Act claims, breach of fiduciary duty, negligence, and related claims
Electronic Data Involved: 3,600 electronic documents which, if printed out, would total more than 10,000 pages
Key Insight: Noting that it was undisputed that e-discovery costs were available as taxable costs under Section 1920(4), but that there was scant legal authority in the circuit and district giving litigants guidance in seeking those costs, court deducted one-half of defendants’ request for costs related to electronically processing, hosting, and producing documents in discovery as well as electronically processing both sides’ trial exhibits, and awarded defendants $3,454 in e-discovery costs
Nature of Case: Commercial litigation
Electronic Data Involved: ESI and trial exhibits
Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion
Nature of Case: Race discrimination
Electronic Data Involved: ESI
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