Key Insight: Motion for protective order granted where requested information was not relevant to claims or defenses plead and thus was outside of the scope of discovery
Nature of Case: Misappropriation of Trade Secrets
Electronic Data Involved: ESI, database
Key Insight: In this case, the court granted in part Plaintiff?s motion for sanctions where ESI was automatically destroyed despite a duty to preserve as the result of Defendant?s employees? failure to forward Plaintiff?s notice of litigation and request for preservation to corporate headquarters. Declining to impose an adverse inference, the court ordered that Defendants would not be allowed to rely on the destroyed records or other evidence designed to show their contents.
Nature of Case: Claims arising from traffic accident
Electronic Data Involved: ESI
Key Insight: Addressing Plaintiffs? objection to a request for, essentially, all of Plaintiff?s Facebook content, the court cited Giacchetto v. Patchogue-Medford Union Free School Dist., No. 293 F.R.D. 112 (E.D.N.Y. 2013) for the proposition that ?routine status updates and/or communications on social networking websites are not, as a general matter, relevant to [plaintiff?s] claim for emotional distress damages, nor are such communications likely to lead to the discovery of admissible evidence regarding the same,? but further reasoned that ?post specifically referencing? Plaintiff?s emotional distress or at-issue treatment were discoverable and should be produced
Nature of Case: Motion to compel in case alleging discrimination, harassment, hostile environment, retaliation and unequal pay in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law and the Equal Pay Act
Electronic Data Involved: Social media/social network (Facebook)
Key Insight: In personal injury case, the trial court abused its discretion by ordering forensic imaging of ALL of Plaintiff?s devices, including his work computer which was owned by his employer, where, among other things, the appellate court determined that such a request ran ?counter to the traditional protocol of discovery, in which one party requests specific information and the other party searches its own files (and computers) to identify and produce responsive information?; where the computer was not directly involved in the cause of action; where there was no evidence of prior discovery violations; and where ?careful consideration of relevance and proportionality reveal[ed] that forensic imaging was not justified in this case? including because there were ?ample? alternative avenues for discovery (e.g, requests for admission, depositions) and because much of the information sought fell within the categories of ESI identified in Illinois to be presumptively not discoverable; the court also addressed Plaintiff?s privacy concerns
Nature of Case: Personal injury (appeal)
Electronic Data Involved: Forensic imaging of computers (including work computer)
Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve
Nature of Case: Employment litigation
Electronic Data Involved: Emails of departed/terminated employee
Key Insight: Third party objected to Subpoena to produce documents alleging undue burden and significant expense and refused to comply without a cost-shifting order. The Court consequently granted the requesting party?s motion to compel and the third party was ordered to produce all responsive documents by the ?most reasonable and practical method it can procure.? Following production, the third party then sought $30,603.55 in expenses. The Court?s two-prong analysis examined the expenses as to whether they were both reasonable and significant. The Court did not award attorneys? fees because the privilege and confidentiality review was a benefit only to the third party. Partial vendor costs were awarded, namely the amount it would have been had the third party used the vendor suggested by the requesting party and some additional miscellaneous costs were awarded. The Court found a total of $4,072 were expenses that resulted from compliance with the Subpoena and did qualify as ?significant expenses.?
Nature of Case: Antitrust and tort
Electronic Data Involved: Gmail
Key Insight: Where an initial search of file names on a legacy drive (as opposed to the contents of the drive) did not identify ten responsive documents that were eventually produced after the close of discovery and a mere 7 days prior to trial, the court found that the search was an unreasonable inquiry under Rule 26(g) citing counsel?s failure to guide or monitor the employee conducting the search; the at-issue employee?s lack of experience conducting searches of large document repositories and the failure of counsel to ask the IT department to assist; and the objective unreasonableness of the search in light of the initial failure to search within the contents of the legacy drive and imposed monetary sanctions to address Plaintiff?s increased efforts as a result of the failure to timely produce the documents but reduced the award by 1/3 where Plaintiff would have had to expend some of the at-issue resources regardless and where Plaintiff failed to follow up when the employee who conducted the search indicated he did not know if he had searched within the files themselves
Electronic Data Involved: ESI from legacy drive
Key Insight: The Court granted Defendant?s Motion for a Protective Order and held that under limited circumstances, a party may seek to share reasonable costs related to reviewing documents prior to their production. The Court considered vendor fees to be a valid target for cost-sharing under the facts of this case: discovery spanned more than a decade, the costs currently under review were a small fraction of the costs incurred by Defendant in discovery and there were no concerns that cost shifting would deter Relators or others. Further, Defendant showed that ?almost the entirety of its requested costs were incurred in attempting to respond to Relators? discovery requests, and not incurred as a result of a self-interested privilege review.?
Electronic Data Involved: Electronic mortgage loan files
Key Insight: Where Defendants requested a full archive of social media contents from the decedent and her next of kin from 2007 through the date of Plaintiff?s death in April 2013, the court acknowledged that some social media content may be relevant to the claims and defenses at issue but found that where the request was not tailored to relevant content or limited to a reasonable period of time it was overbroad and Defendants? motion to compel was denied
Nature of Case: Wrongful death
Electronic Data Involved: Social media (Facebook)
Key Insight: Where non-party argued that subpoena exceeded scope of EEOC?s authority because it sought information irrelevant to the claim of sex discrimination (e.g., information re: race) and was unduly burdensome because it would take the single HR Officer approximately 500 hours to respond and take her away from other important work for the corporation, the court found that the information sought was relevant (reasoning that the standard of relevance is broad and ?generous? and that the information could ?shed light on possible discriminatory hiring practices and thereby, lead to the discovery of admissible evidence?) and that the burden did not outweigh the benefit, reasoning that ?[[o]ther than the fact that its employment records are kept in paper format in southern Illinois, [the non-party] has not provided any reason as to why its corporate human resources department cannot assist in responding to the subpoena or why it could not hire temporary staff to assist.?
Nature of Case: Employment litigation: sex discrimination
Electronic Data Involved: Hard copy
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