Key Insight: Plaintiffs files motion to compel text messages in April 2016, Discovery had closed in November 2015. Defendant’s failure to realize that they couldn’t search specifically for text messages is not basis for granting motion to compel so late. Decision was later vacated.
Nature of Case: Contract Dispute
Electronic Data Involved: Text Messages
Keywords: Text messages; after discovery closed
Fischer v. Forrest, —F. Supp. 3d—, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017)
Judge Peck has “once again” issued a “discovery wake-up call,” this time regarding the effects of the 2015 amendments on the rules of discovery and in particular on Rule 34, addressing proper responses to requests for production. Specifically, the court noted that “one change that affects the daily work of every litigator is to Rule 34,” and instructed that “[m]ost lawyers who have not changed their ‘form file’ violate one or more (and often all three)” of the changes to the rule. Those changes require that “responses to discovery requests must”:
In these related cases, the court concluded that Defendants’ responses to discovery violated the discovery rules, including by failing to comply with the requirements of Rule 34(b) and failing to recognize and appropriately respond to the amendments to Rule 26(b)(1).
Key Insight: email
Nature of Case: Family Business dispute
Electronic Data Involved: email
Keywords: Pattern of delinquent conduct; Complete disr4egard for court orders; failure to preserve; Zubulake
Key Insight: Updated spoliation rule was correctly applied to motion regarding earlier conduct because the party cited the updated rule
Nature of Case: Negotiable instrument
Electronic Data Involved: deleted electronic records, emails, text messages
Keywords: retroactive application discovery rule, ESI spoliation sanctions
Identified Local Court Rule(s): S. District N Local Civil Rule 7.1(a)(1)
Key Insight: general objections
Nature of Case: trademark; Lanham Act
Electronic Data Involved: business records
Keywords: the use of boilerplate language in responding to discovery requests violates Rule 34
Key Insight: Sanctions not allowed on parties wiping laptops, because they had only been named as search terms after the other party knew that wiping had happened. No sanction for lost emails available from another source. Pure speculation is not enough to find that relevant ESI was destroyed.
Nature of Case: Securities and Commodities litigation
Electronic Data Involved: Computer log info, laptop info
Keywords: spoliation, sanctions, inherent authority
Key Insight: Negligence or even gross negligence is not necessarily bad faith and thus not spoliation
Nature of Case: Product liability
Electronic Data Involved: Car electronic data
Keywords: truck, bad faith, salvage yard, spoliation, sword, shield
Key Insight: Sanctions denied against defendant because text messages were available from a different source, sanctions denied against plaintiff because documents were not under plaintiff’s control
Nature of Case: Fair Labor Standards Act (failure to pay overtime wages)
Electronic Data Involved: Text messages
Keywords: FLSA, Sefket, CBA,
Key Insight: Plaintiff requested Defendant run 72 “spelling variations” of 5 terms allowed by prior court order. Court denied and allowed 20, but did not apply sanctions yet.
Nature of Case: Libel/Slander
Electronic Data Involved: Various ESI
Keywords: search terms; sanctions; cooperation
Key Insight: personnel file related to settlement and claims handling was ordered to be produced with some confidentiality and redactions to protect personal information of adjuster.
Nature of Case: bad faith
Electronic Data Involved: adjusters personnel file
Keywords: personnel file
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