S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)
Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)
Electronic Data Involved: ESI
Kolon Indus. v. E.I. Du Pon De Nemours & Co., No. 3:11cv622, 2012 WL 614137 (E.D. Va. Feb. 23, 2012)
Key Insight: Court granted defendant?s motion to compel production of ?computer images and dumpster files? for 29 custodians upon finding that the information sought was relevant and that production would not be unduly burdensome
Nature of Case: Patent Infringement
Electronic Data Involved: Computer images and “dumpster files”
Stanfill v. Talton, No. 5:10-CV-255(MTT), 2012 WL 1035385 (M.D. Ga. Mar. 29, 2012)
Key Insight: Where defendant preserved only portions of a relevant video tape and allowed the remainder to be recorded over, court denied motion for spoliation sanctions because plaintiff did not establish that a duty to preserve existed or, if it did, that it was owed to the plaintiff and because the level of culpability with which the video was lost did not support a spoliation sanction in the 11th circuit
Nature of Case: Claims arising from death of defendant in jail
Electronic Data Involved: Video surveillance
MPCA King of Spades v. T.E.C. 2 Broad., Inc., No. 1:11cv00080, 2012 WL 1203372 (W.D. Va. Apr. 10, 2012)
Key Insight: In litigation including claims that defendants had publically broadcast plaintiffs? copyrighted music without permission, the court noted that the question of ?what songs have been played and when? was at the ?heart? of the litigation and that the inability to retrieve that information in an ?easily accessible format? was the result of defendants? failure to preserve such that mirror imaging was warranted to determine if deleted programming logs could be restored and ordered that defendant bear the risk of any possible interruption to its ability to broadcast while the copying occurred (i.e., plaintiff would not be liable for any interruption in programming)
Nature of Case: Copyright infringement
Electronic Data Involved: Programming logs
Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)
Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)
Nature of Case: Patent infringement
Electronic Data Involved: ESI
In re White Tail Oilfield Servs., No. 11-0009, 2012 WL 4857777 (E.D. La. Oct. 11, 2012)
Key Insight: Where the petitioner (for an order compelling production) had access to plaintiff?s Facebook account but argued that merely taking screen shots would not include deleted information and where plaintiff alleged numerous difficulties with using the ?download your information? feature such that he could not produce the contents himself, the court ordered plaintiff to produce the information within 7 days but also noted that because the petitioner had access to the password, it could access the account and utilize the ?download your information? button, which would send that information only to Plaintiff, and that Plaintiff would then be obligated to forward that information to Petitioner?s counsel
Nature of Case: Personal Injury
Electronic Data Involved: Facebook
Hunter v. State of Delaware, —A.3d—, 2012 WL 5349395 (Del. Oct. 26, 2012)
Key Insight: Addressing the police department?s failure to preserve relevant surveillance footage of events at the police station following defendant?s arrest (by allowing it to be automatically recorded over), the Supreme Court of Delaware determined that the lost recording was not dispositive evidence and that the criminal trial was therefore not ?fundamentally unfair? and thus held that the trial court properly determined that a missing evidence instruction was a sufficient remedy and that fundamental fairness did not require a judgment on acquittal on the Assault and Resisting Arrest charges
Nature of Case: Criminal: Assault and Resisting Arrest
Electronic Data Involved: Video footage
Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950(LBS)(JCF), 2012 Wl 3964742 (S.D.N.Y. Sept. 10, 2012)
Key Insight: Court addressed in depth a myriad of important discovery issues (e.g. ?phasing, sampling, and proportionality?); as to the question of reasonable accessibility, court clarified that a showing of undue burden alone is insufficient to establish inaccessibility and that the alleged burden must be ?associated with some technological feature which inhibits accessibility? and, noting that defendant?s databases were not inaccessible because of such a feature, found that rule 26(b)(2)(B) presented ?no barrier? to discovery of the at-issue databases; turning to the question of proportionality pursuant to Rule 26(b)(2)(C), court focused on section (iii) and, after discussing options to lessen Defendant?s burden, including sampling or a ?document dump,? found that most ESI was subject to production for reasons including the importance of the information to the case, the high financial stakes and Defendant?s ?ample resources,? the importance of the issues being litigated, and Defendant?s exaggeration of the burden and the inadequacy of proposed alternatives
Nature of Case: Putative class action asserting gender discrimination by employer
Electronic Data Involved: Database content
Pacific Coast Marine Windshields Ltd. v. Malibu Boats, LLC, No. 6:12-cv-33-Orl-28DAB, 2014 WL 10817204 (M.D. Fla. Nov. 30, 2012)
Key Insight: Where defendant?s contractor produced CAD files with incorrect creation dates and was subsequently ordered to produce his computer for inspection in an unaltered state, but ran a file-deletion or ?computer cleaning/wiping? program named ?CCleaner? the night before delivering the computer for inspection, court found that sanctions were appropriate to keep defendant from benefitting from contractor?s intentional conduct and to deter others from similar conduct in the future; contractor would not be allowed to testify at trial, all evidence that originated with contractor would be excluded, defendant would not be allowed to rely on contractor?s deposition testimony for summary judgment purposes or at trial, and defendant was required to pay plaintiff?s reasonable attorneys? fees and cost of forensic investigation conducted by plaintiff?s forensic expert
Nature of Case: Patent infringement, misappropriation of trade secrets, unfair competition
Electronic Data Involved: Hard drives of defendant’s contract CAD software operator; metadata and contents of CAD files
State Nat?l Ins. Co. v. Cnty. of Camden, No. 08-5128 (NLH)(AMD), 2012 WL 960431 (D.N.J. Mar. 21, 2012)
Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation
Electronic Data Involved: ESI