Key Insight: Court denied motion for protective order since record was incomplete, but ordered parties to meet and confer to develop a proposed discovery plan; court set forth specific instructions regarding preservation of documents to be observed by parties until they reached agreement on preservation plan
Electronic Data Involved: Email, hard drives, metadata, and other forms of electronic documents
Key Insight: Court entered default judgment against defendants and dismissed their counterclaims with prejudice as sanction for repeated discovery violations and blatent disregard of court’s orders; among other things, defendants had failed to produce any emails and discarded individual defendant’s computer that was subject to inspection request
Nature of Case: Breach of contract, fraud, and other claims
Electronic Data Involved: Email
Key Insight: Court granted defendant’s motion for summary judgment on copyright infringement counterclaims, based in part on adverse inference stemming from plaintiff’s failure to preserve and produce relevant evidence; defendant showed that substantial portion of deleted files recovered by its forensic expert were favorable to its position on various claims
Nature of Case: Plaintiff alleged defendant improperly disparaged plaintiff’s product, and defendant asserted counterlaims for copyright infringement
Electronic Data Involved: Electronic data on hard drives
Key Insight: Where defendant showed that there were more than 200 million sales transactions contained in database and that it would be necessary to create a special software program to capture the information requested by plaintiffs and translate the information into a meaningful and readable format, court sustained defendant?s objections of burdensomeness and overbreadth and denied motion to compel; court would allow plaintiff to serve new, more narrowly tailored requests for production but would first require parties to confer in good faith to discuss the form in which ESI should be produced and how to ameliorate the costs attendant to production of such information
Nature of Case: Third party breach of contract and unfair trade practices
Electronic Data Involved: Sales database
Key Insight: Where court had invited motion to address e-discovery issues in order to assure that e-discovery issues were moving foward, court granted motion and directed parties to the Guidelines for the Discovery of ESI for the District of Kansas to serve as guidance pendng enactment by the court of its own local rules and/or guidelines; court further noted that, although no formal preservation order had been entered, the duty to preserve evidence including ESI arises as soon as a party is aware the documentation may be relevant; court further warned parties to be “very cautious” in relying upon the safe harbor provision of new FRCP 37(e)
Nature of Case: Nuisance and CERCLA claims against owners of poultry growing operations
Electronic Data Involved: ESI
Key Insight: Court ruled plaintiff was entitled to monetary sanctions arising from defendant’s document production, stating: “It is undisputed that the first two productions were essentially unusable, and that as a result, plaintiff’s law firm wasted a considerable amount of time attempting to organize the electronic documents. It was the responsibility of defense counsel to ensure that the document production complied with Rule 34(b)(i), and to oversee the work of defendant’s document management company.”
Nature of Case: Construction litigation
Electronic Data Involved: Electronic documents
Key Insight: Overruling defendant’s relevancy objections to various interrogatories, court ordered defendant to serve full and complete answers to various interrogatories, including one that asked: “Identify any documents, data or other information that relate to or reference the subject matter of this litigation, that have been deleted, physically destroyed, discarded, damaged, or overwritten, whether pursuant to a document retention policy or otherwise.”
Nature of Case: Breach of contract, tortious interference, and negligent misrepresentation
Electronic Data Involved: Potentially deleted data
Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them
Nature of Case: Infringement litigation
Electronic Data Involved: Servers
Key Insight: District court did not abuse its discretion when it denied plaintiff?s motion for spoliation sanctions, since plaintiff offered no specific evidence that any of the destroyed emails contained relevant information
Nature of Case: Claimed violations of the anti-fraud provisions of the Securities and Exchange Acts
Electronic Data Involved: Email
Key Insight: Resolving various discovery issues, court found defendants? explanation of document search sufficient and observed that plaintiff could not identify any particular document or category of missing documents based on evidence aside from his own incredulity; court added that, if gaps evolved after defendants’ supplementation of production, plaintiff could revisit the issue
Nature of Case: Patent infringement
Electronic Data Involved: Email and other ESI
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