Key Insight: Court denied plaintiff?s motion for access to defendants? computers and other electronic storage devices (at defendants? expense) where plaintiff?s allegations of incomplete discovery and spoliation were merely speculative and were insufficient to justify his request
Nature of Case: Defamation
Electronic Data Involved: Computers, electronic storage devices
Key Insight: President and owner of corporation waived privileged as to emails on company servers by consenting to the sale of all company assets, including the company?s servers and emails, without asserting his privilege; shareholders/officers of corporation waived privilege as to messages sent from company email where subjective belief that their communications were confidential was not reasonable in light of company?s email policy which claimed ownership of emails on company systems and reserved the right to access them; court?s analysis applied Asia Global Crossing factors, but acknowledged that privilege waiver inquiries require case-by-case analysis
Nature of Case: Claim of fraudulent sale of business to avoid judgment
Electronic Data Involved: Allegedly privileged emails
Key Insight: Where defendant converted relevant audio files to .wav format and destroyed the originals pursuant to its document retention policy, the court declined to enter spoliation sanctions because the record did not establish bad faith reasoning (1) that defendant had provided an adequate explanation for plaintiff?s concern about gaps in the recordings, (2) that plaintiff should have requested the files in native format (which she did not) and that had she done so, defendant would have been on notice to preserve relevant files in their original format, and (3) the files were discarded pursuant to an established document retention policy; regarding bad faith, court stated, ?Only the bad faith loss or destruction of evidence will support either a judgment in favor of Plaintiff or the kind of adverse inference that Plaintiff seeks, i.e., that production of the original i360 recordings would have been unfavorable to Defendant?
Nature of Case: Employment discrimination
Electronic Data Involved: Audio files converted from original format
Key Insight: Where independent forensic examiner was tasked with determining whether plaintiff?s data was present on defendant?s laptop and with maintaining an image of defendant?s laptop sealed from inspection, but where plaintiff reserved the right seek discovery and thereafter subpoened the non-party investigator to produce the mirror image of defendant?s laptop, magistrate judge found that rule 45 subpoena was an appropriate discovery method and denied defendant?s motion to quash; on emergency appeal, the District Court noted that allowing direct inspection of a party?s hard drive was not routine, that because of the presence of potentially privileged material, even plaintiff?s expert should not have access to the entire hard drive without allowing defendant?s to object to the production of certain information and that in light of the short time before trial it was ?simply too late?; court noted that this ?predicament? was one plaintiff ?created itself? by waiting to seek access to the hard drive despite knowing for months of the potential that its data was present there
Nature of Case: Misappropriation of trade secrets and related claims
Electronic Data Involved: Hard drive
Key Insight: Where FTC sought to compel defendant to search for and produce responsive ESI on backup tapes, the court resolved the question of what standard must be applied to properly analyze the producing party?s claims of burden (Rule 26(b)(2)(B) ?good cause? to overcome the burden shown by the responding party v. the standard established in FTC v. Texaco Inc., 555 F.2d 862 (DC Cir 1977) ?a showing that compliance with the subpoena ?threatens to unduly disrupt or serious hinder normal operations of a business??) and determined that in light of the narrowed request, the defendant had not established a sufficient burden and thus ordered defendant to conduct a search of the at-issue backup tapes and to produce any non-privileged materials
Nature of Case: Administrative Subpoena
Electronic Data Involved: Backup tapes
Key Insight: Court addressed Plaintiff?s motion to compel production and declined to shift defendant?s discovery costs where defendant addressed only two of seven factors to be considered when seeking to shift costs but sua sponte entered a 502(d) order to ease defendant?s production burden if they chose to avail themselves of it; court?s analysis made clear that counsel?s resources are not an appropriate consideration in a cost shifting analysis
Nature of Case: Claims arising from insurance company’s alleged improper rate increase
Electronic Data Involved: ESI
Key Insight: Where, based on discrepancies in certain witnesses? testimony, Plaintiff believed that relevant investigation notes/computer journal entries were created on a date later than the date alleged by the defendant, and where the creation date was relevant to the issues in the case, the court granted plaintiff?s motion to compel a forensic investigation of the computer on which the evidence was created, but sua sponte issued a protective order that would allow Plaintiff?s forensic investigator to make a mirror image of the at-issue computer but would limit his investigation to the question of when the notes were made or modified and which prohibited the investigator from accessing or viewing information not relevant to that discreet issue
Nature of Case: Employment Discrimination
Electronic Data Involved: Computer hard drive
Key Insight: Trial court abused discretion in granting motion to compel forensic imaging of third party?s devices where the record did not present a history of discovery violations or non-compliance sufficient to justify such intrusion and where the court?s order permitted ?unfettered forensic imaging? and contained none of the protections required to conduct forensic analysis (e.g., a neutral third-party examiner, production to counsel for privilege review prior to production to opposing counsel, etc.)
Nature of Case: Violation of non-compete
Electronic Data Involved: Forensic imaging
Key Insight: Acknowledging the ?flexible and fact-specific? nature of the question of reasonable forseeability, the court addressed several possible triggers for the duty to preserve but ultimately determined that plaintiffs had not demonstrated that the duty to preserve was reasonably foreseeable at the time defendant implemented its document retention policy or that defendant should have reasonably anticipated litigation and therefore denied plaintiffs? motion for spoliation sanctions
Key Insight: Court found costs related to ?OCR and metadata extraction? were not recoverable
Electronic Data Involved: ESI
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