Key Insight: Court granted motion to compel and rejected objections based on burden where Defendants offered no evidence in support of the alleged claims of burden nor ?any specificity regarding the approximate cost of production?
Nature of Case: Fraud
Electronic Data Involved: ESI
Key Insight: Where defendants downloaded some, but not all available video within three days of incident and video-recording system programmed by third-party vendor automatically overwrote old video after thirty days, court found that defendants did not destroy evidence in bad faith and plaintiff was not extremely prejudiced and, therefore, not entitled to spoliation sanctions. Court also reviewed the record related to missing documents and said that defendants had diligently searched for the documents and concluded, ?Apparently, Defendants do not have these documents, and there is no evidence of bad faith or spoliation of evidence. Because Defendants are only required to produce what they have, the Court cannot compel Defendants to produce these documents.?
Nature of Case: Wrongful Death
Electronic Data Involved: Surveillance Video; Documents
Key Insight: Court said it appreciated defendants? decision to ultimately comply with its discovery obligations by producing 16,600 pages of accounting records the day after the motions hearing on the matter, but said that the untimely disclosure did not have any bearing on the fact that defendants did not allow plaintiffs access to all of their accounting records and altered those records to which they did allow access to conceal material information without valid justification. Finding that defendants acted in bad faith for having failed to comply with three court orders compelling discovery and having done so knowingly and intentionally, court granted motion for sanctions, including adverse inferences and cost and fees.
Nature of Case: Lease
Electronic Data Involved: Accounting records
Key Insight: Where Plaintiff? spoliation of financial information forced experts to rely upon ?unverified secondhand data,? court found the reports ?exhibit[ed] neither sufficient reliability nor the requisite fit required for admission in federal practice? and granted Defendant?s motion to exclude
Nature of Case: Breach of contract, promissory estoppel
Electronic Data Involved: Financial information (ESI, hard copy)
Key Insight: Court denied ?Plaintiffs? motion to compel Defendant s to disclose their secret personal passcodes for smartphones owned by their former employer who, as a matter of policy, required their employees to keep their personal passcodes secret from everyone? upon concluding that ?[s]ince the passcodes to Defendants? work-issued smartphones are not corporate records, the act of producing their personal passcodes is testimonial in nature and Defendants properly invoke their fifth Amendment privilege? and that the ?foregone conclusion doctrine? did not apply ?as the SEC Cannot show with ?reasonable particularity? the existence or location of the documents it seeks?
Electronic Data Involved: Passcodes or passwords to smartphones
Key Insight: Where Plaintiff produced documents ?en masse? without any indication of what was produced or what request the documents were responsive to and claimed that they were produced as kept in the usual course of business and thus in compliance with Rule 34, the court reasoned that a party who produces documents as kept in the usual course has the burden of proving they were in fact produced in that manner and that a party may not wait until a motion to compel is filed to provide that information and concluded that Plaintiff had not complied with the requirements of Rule 34(b)(2)(E)(i) and ordered that Plaintiff must identify by Bates number which documents were responsive to each request
Electronic Data Involved: ESI
Key Insight: Where Plaintiff?s agent deleted an original voicemail from his phone by way of a factory reset but had produced a copy and also claimed to have transferred the voicemail to his new phone and where Defendants sought sanctions and argued that the deletion would prevent them from showing the voicemail was fabricated, as they suspected, the court declined to impose sanctions for the alleged fabrication, despite evidence the presentation of evidence that could lead to that conclusion, but did order that Plaintiff be prevented from using the voicemail at trial as a sanction for spoliation, reasoning that although the voicemail was not on one of Plaintiff?s phones (but rather on its agent?s), it ?likely? had a duty to preserve the evidence and that Plaintiff did not attempt to provide access to the phone or provide notice of the voicemail?s possible destruction
Nature of Case: Enforcement of Restrictive Covenants
Electronic Data Involved: Voicemail
Key Insight: Court declined to impose spoliation sanctions for Township?s alleged failure to preserve relevant evidence where the Township believed that all disputes with Plaintiffs had been resolved, and thus had no anticipation of litigation or duty to preserve prior to the filing of the complaint, where there was no evidence that the at-issue evidence was destroyed after litigation had commenced, and where Plaintiffs failed to establish that defendant had acted with any ill motive or bad intent (bad faith) in failing to retain the documents plaintiff sought
Nature of Case: Constitutional claims related to land use
Electronic Data Involved: Emails, ESI
Key Insight: Court addressed motion to compel nationwide discovery in action for fraudulent billing of Medicare and Medicaid but, considering the ?scope of discovery expressed in Rule 26(b)(1) along with the principle of proportionality implicit in Rule 26(b)(2)(C)(iii)? limited initial phase of discovery to the seven states regarding which ?factual allegations? had been alleged in the complaint, recognizing that ?staged discovery [was] the way to move discovery forward,? and indicated that the motion would be denied without prejudice
Nature of Case: False Claims Act
Electronic Data Involved: ESI records from nationwide locations
Key Insight: Court said that it was clear that the defendant?s name on a Facebook profile did not suffice to show that he authored the Facebook messages, but what did authenticate them were the ?peculiar circumstances? of the case, including a Facebook message that contained the same three digits of a phone number that was used to text victim and arrange a meeting at which the defendant was arrested. Court also found that the fact that the defendant went alone to an agreed location twice after the sender of text messages agreed to do so, with a phone in his possession that had the same number as had been used to communicate with the victim, was sufficient to authenticate that the defendant was the author of the text messages.
Nature of Case: Criminal
Electronic Data Involved: Social media (Facebook), Text Messages
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