Key Insight: delayed legal hold and missing metadata caused prejudice; sanctions imposed such that plaintiffs may not use the date in a document to prove document creation date and defendant may offer archived websites from the internet into evidence
Nature of Case: defamation, libel
Electronic Data Involved: websites, emails, metadata
Keywords: metadata, legal hold, spoliation of websites
Key Insight: communications that occurred outside of the mediation but involve the mediator are not protected by the mediation privilege
Nature of Case: Insurance Bad Faith
Electronic Data Involved: documents used in mediation that Defendant claim to be protected by mediation privilege
Keywords: mediation privilege, reconsideration, under seal
Key Insight: Lack of prejudice or evidence of intent to deprive. Denied motion for dispositive sanctions under Rule 37(e). No evidence that higher quality recordings actually existed and were not preserved.
Nature of Case: Excessive force used during security screening
Electronic Data Involved: closed circuit video recordings
Keywords: preserve video recording, excessive force at the security screening.
Key Insight: Lost ESI claim failed because there was no proof anything was lost and there was no clear duty to preserve.
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: archived email, facebook posts
Keywords: spoliation, lost ESI, duty to preserve
Key Insight: Where Defendant?s use of an internal utility tool on the at-issue server resulted in all of the data thereon being overwritten but where the District Court Judge found ?credible? Defendant?s explanations that he did not believe the hard drives contained relevant information and where the ?unique facts? of the case, namely the focus on Defendant?s TOR Node – which ?routed information for other end users around the world? but did not contain Defendant?s personal data – contributed to the court?s disagreement with the Magistrate Judge?s finding of intent, the court adopted the Magistrate Judge?s finding of spoliation but declined to impose default judgement and instead concluded that an adverse inference was appropriate
Nature of Case: Copyright infringement
Electronic Data Involved: ESI
Key Insight: In response to Plaintiff?s Motion for Spoliation Sanctions, the Court engaged in an analysis of four types of available sanctions: Evidentiary, Monetary, Dispositive and Adverse Inference Instructions. The Plaintiff argued the Defendant intentionally destroyed evidence in the form of an incident report, a surveillance video and correspondence between Defendant and a third-party claims adjuster. The Court found that information from the incident report and the lost emails with the claims adjuster were available elsewhere and that the loss of the video surveillance was due to a system-wide outage that affected several stores. The Court found no evidence that Defendant acted intentionally or recklessly and denied Plaintiff?s request for Dispositive Sanctions but instead imposed lesser Evidentiary Sanctions by allowing the Plaintiff to introduce evidence that the incident report was lost or destroyed, that the Defendant failed to preserve the third-party communications and that Defendant?s video system failed to record the incident.
Nature of Case: Slip and Fall
Electronic Data Involved: ESI, including video
Key Insight: Defendant moved to compel Plaintiff to produce additional documents, supplement discovery responses, and remove non-responsive documents from their production. Plaintiff had not been able to obtain the entire underlying action file from former counsel, and argued they do not have actual control over the documents. The court found Plaintiffs did have ?possession, custody or control? of the file under Fed. R. Civ. P. 34 (even though counsel had not been cooperative in turning the materials over) and granted Defendant?s motion to compel production of additional non-privileged and responsive documents. Plaintiffs were ordered to obtain the file and provide supplemental responses to Defendant?s RFPs. Defendant asserted Plaintiff?s previous production was a ?data dump? without an index (and contained numerous non-responsive documents), and did not comply with Fed. R. Civ. P. 34. Plaintiffs contended that Defendant did not request a specific format and that they complied with the discovery order and produced their ESI in a proper format (PDF). Plaintiffs also claimed that Defendant?s request to have Plaintiff organize their production based on RFPs would be disproportionate – the production was in date order, allowing Defendant to ?organize, index and search the data at a low cost and with little effort.? The court agreed, finding the production adequate and cited the advisory committee?s notes for Fed. R. Civ. P. 34 (?contemplated that the parties requesting ESI would be able to organize it themselves?). Finally, the court denied Defendant?s motion for supplemented interrogatory responses, finding the Plaintiffs? responses adequate (the burden of finding the answer would be ?substantially the same for either party?).
Electronic Data Involved: ESI
Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States
Nature of Case: Antitrust
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established
Nature of Case: APA Action related to Touhy request
Electronic Data Involved: Email
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