Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead
Nature of Case: FMLA claims
Electronic Data Involved: Email
Key Insight: Court declined to enforce prior Order compelling discovery where defendants produced documents from limited time frame but could produce no more because the information was recycled pursuant to its previously disclosed retention policy, prior to defendant?s notice of the lawsuit; court declined to compel production of alternative information because it was not what plaintiffs originally sought or what was required by the Order
Nature of Case: Unlawful conspiracy to prevent and suppress competition
Electronic Data Involved: ESI on back up tapes
Key Insight: Court denied Spain’s motion to reconsider November 3, 2006 Opinion and Order rejecting the various reasons offered as support
Nature of Case: Litigation brought by the government of Spain arising from shipping casualty and oil spill
Electronic Data Involved: Email
Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith
Nature of Case: Employment discrimination
Electronic Data Involved: Computer hard drive and backup tapes
Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”
Nature of Case: Trademark infringement
Electronic Data Involved: Email
Key Insight: Court granted plaintiff’s motion to compel and denied defendant’s request to shift costs of production to plaintiff, since defendant provided no information about whether and how such information was “inaccessible” or any other information relevant to cost-shifting determination under Zubulake III; court encouraged parties to agree on most efficient means of production and noted that plaintiff had indicated willingness to provide high capacity storage devices
Nature of Case: Copyright infringement
Electronic Data Involved: Adult video content; website traffic information
Key Insight: Court ordered parties to develop joint precertification discovery plan and articulated detailed guidelines for discovery of ESI adapted from the ?Suggested Protocol for Discovery of Electronically Stored Information? set forth by the United States District Court for the District of Maryland
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Court denied motion to compel production of email from 113 backup tapes, estimated to cost between $45,200 and $79,100, plus attorney’s time in reviewing documents, since defendant had not sufficiently demonstrated that responsive emails relating to settlement negotiations existed on the backup tapes, which covered time periods that were months after the settlement was reached; court noted that if moving party wished to pay to restore the backup tapes, it may do so
Nature of Case: Insurance coverage
Electronic Data Involved: Email stored on backup tapes
Key Insight: Where defendant did not conduct a reasonably diligent search for numerous categories of documents that court ordered be produced, did not conduct a reasonably diligent search for ESI, and did not suspend its document destruction policy or otherwise take adequate steps to preserve documents, among other forms of relief court ordered defendant to retain at its own expense an outside vendor, to be jointly selected by the parties, to collect responsive ESI; court further indicated it would impose $125,000 in sanctions representing reasonable amount of attorneys’ fees expended by plaintiff as result of defendant’s discovery misconduct
Nature of Case: Licensing and distribution claims, breach of fiduciary duty, unfair competition, fraud
Electronic Data Involved: Email and other electronic documents
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
Copyright © 2022, K&L Gates LLP. All Rights Reserved.