Key Insight: Where nonparty merely asserted, without adequate factual support, that compliance with the subpoena would cause it to incur ?significant expenses,? court denied nonparty?s request for costs for time spent by its employees configuring and executing electronic search and by attorneys reviewing results of search
Nature of Case: Breach of limited partnership agreement
Electronic Data Involved: Unspecified ESI
Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order
Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession
Electronic Data Involved: Email and other ESI
Key Insight: Where defendant objected that requests for production of certain financial data sought to force them to create documents that did not exist, but did not assert that requested data was not readily accessible, and plaintiffs argued that they sought production of already-existing data (whether or not such data was stored in electronic form), court found that requests sought relevant information and ordered defendant ?to produce already-existing data, whether in raw or synthesized form,? responsive to the requests
Nature of Case: Antitrust litigation
Electronic Data Involved: Financial and sales data
Key Insight: Court denied plaintiff?s motion for ultimate sanction of dismissal based upon defendant’s loss of videotape, since there was no proof of willful or bad faith destruction and marginal relevance of missing videotape was such that plaintiff’s ability to prosecute the case was not meaningfully compromised
Nature of Case: Employment discrimination
Electronic Data Involved: Surveillance videotape showing unpleasant encounter between plaintiff and customer which preceded plaintiff’s termination
Key Insight: Further to its December 20, 2006 order granting plaintiff’s motion for sanctions, 2006 WL 3759914, court awarded plaintiff $134,373 representing reasonable attorneys’ fees and costs (including fees of computer forensics expert) incurred because of defendant’s discovery misconduct
Nature of Case: Insurance fraud
Electronic Data Involved: Hard drives
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
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