Key Insight: Court denied motion for expedited discovery but granted motion for preservation order since defendant did not raise any issues regarding the appropriateness of preservation of evidence and court agreed that “all documents, software and things” relating to the matter should be preserved
Nature of Case: Unfair competition
Electronic Data Involved: Documents, software and things
Key Insight: Denying Ford’s request for clarification of January 4, 2007 Order, court nonetheless confirmed that plaintiffs may ask deponent about what materials are available for production, and if materials are not available, why they are not available; “Plaintiffs are not, however, permitted to use the deposition as a surrogate for production of the suspension document, and may not ask questions pertaining to the specific contents or rationale behind the suspension order.”
Nature of Case: Personal injury product liability
Electronic Data Involved: Legal hold notice
Key Insight: Where defendant stated it did not maintain physical copies of statements and that compliance with production request would impermissibly require it to create documents, court found that defendant had not shown requested information was “not reasonably accessible” and ordered production to the extent defendant maintained any of the requested information electronically
Nature of Case: Conversion
Electronic Data Involved: Customer account statements
Key Insight: Ruling on defense motions for clarification, court directed that plaintiffs? expert and court-appointed monitor shall ?forthwith inspect the State?s computer systems and computers of the fifty (50) key custodians that contain information relevant to this action,? that plaintiffs? expert or his designee ?shall make forensic copies of any computer inspected to ensure the preservation of all existing electronically stored information (?ESI?)?; court further ordered that United States Marshall should accompany the plaintiffs? expert to ?ensure that this Order is fully executed.?
Nature of Case: Class action on behalf of 550,000 children seeking to enforce their rights under federal law to various medical services
Electronic Data Involved: Computer systems of defendant Tennessee state agencies
Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: Email
Key Insight: District court upheld magistrate judge?s ruling that Target’s ?litigation hold? notices were subject to attorney-client privilege and work product protection since notices were communications of legal advice from corporate counsel to corporate employees regarding document preservation; however, court sustained objection to magistrate’s ruling that privilege log was inadequate for failing to separately itemize each individual email quoted in an email string, concluding that Rule 26(b)(5)(A) does not require separate itemization of each individual email quoted in an email string
Nature of Case: Putative class action alleging violations of Truth in Lending Act
Electronic Data Involved: Litigation hold notices; privileged email
Key Insight: Where plaintiff needed requested information to compare his circumstances of disciplinary action and termination with others who held his position, and defendant’s undue burden objection rested on unsupported claim that it would take over 100 hours to retrieve information from various company databases, court overruled objection finding that defendant had not demonstrated undue burden: “At best, it has perhaps shown that compliance would be inconvenient and involve some expense.”
Nature of Case: Employment discrimination, wrongful termination
Electronic Data Involved: Computerized accident and driving histories of other employees
Key Insight: Although court denied motion for preliminary injunction forbidding defendant from using, disclosing or destroying emails and other ESI described by defendant as evidence he would present if tangentially related divorce case went to trial, court ordered defendant to produce subject emails and other ESI within 10 days
Nature of Case: Alleged violations of Electronic Communications Privacy Act and Stored Communications Act, invasion of privacy and intentional infliction of emotional distress
Electronic Data Involved: Emails and other ESI described by defendant in affidavit in tangentially related divorce case
Key Insight: Granting defendant’s motion for summary judgment, court drew adverse inference from plaintiff’s loss of records, “i.e., that the records from Mr. Wyatt’s May, 2002 hospital visit are unfavorable to Plaintiff and, therefore, suggest Mr. Wyatt had a pre-existing condition during the October and December, 2002 medical treatment,” as an appropriate sanction due to the prejudice their loss caused defendant in the litigation
Nature of Case: Medical provider sued insurer for failure to pay for services provided to insured
Electronic Data Involved: Medical records relating to insured’s earlier emergency room visit
Key Insight: Where plaintiff stored majority of its documents on third-party servers and failed to make payment to maintain the service, resulting in deletion of relevant documents, court declined to enter default judgment and monetary sanctions but instead would allow lesser sanction of adverse inference instruction, since (1) plaintiff had control, albeit indirectly, over destroyed information; (2) plaintiff was at least negligent in not taking any affirmative steps to preserve documents, and (3) evidence was relevant to defense
Nature of Case: Antitrust, tortious interference with contractual relations
Electronic Data Involved: Documents stored by plaintiff on third-party computer servers
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