Key Insight: Court ordered that certain representations of the Postal Service regarding the ineffectiveness or impossibility of additional searching for responsive documents and ESI be documented and attested to by sworn testimony, in order to lay a solid foundation upon which court could decide motion to compel and/or any future motion for sanctions
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Key Insight: Finding that defendant’s failure to identify certain backup tapes in its initial disclosures was inadvertent and was not intentional, willful, or wanton, court ruled that defendant need not produce such backup tapes because production would be unduly burdensome and not reasonably calculated to lead to relevant information; court further found that inadvertent disclosures of protected work product by each of the parties did not effect waiver and prohibited defendant from using or referring to any ?embedded data? contained in plaintiff?s discovery requests and responses
Nature of Case: Employment discrimination
Electronic Data Involved: Backup tapes and embedded data
Key Insight: Court denied defendant’s motion to compel and for sanctions where parties had agreed on detailed ESI discovery protocol and defendant had opportunity to discover ESI from plaintiff pursuant thereto but never availed itself of that opportunity notwithstanding plaintiff’s continued cooperation; court further awarded sanctions to plaintiff for having to oppose the motion
Nature of Case: Construction litigation
Electronic Data Involved: ESI
Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier
Nature of Case: Class action relating to administration of health care plans
Electronic Data Involved: Email
Key Insight: Court denied motion for sanctions but, despite prior production of the information in hard copy, ordered defendant to restore and re-produce information from backup tapes where the information was ?reasonably calculated to lead to the discovery of admissible evidence? and where defendant asserted that it?s ?documentation? was maintained in electronic form in the usual course of business, and ordered the parties to split the costs; court declined to compel defendant?s search of computers which ?may or may not have been utilized by plaintiff and his comparators? where requiring a search of an unknown number of computers in various offices with the possibility that no relevant individuals utilized them was unduly burdensome
Nature of Case: Employment discrimination
Electronic Data Involved: Backup tapes, computers
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: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case
Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information
Electronic Data Involved: Confidential information stored on secure website
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: Among other findings on plaintiff’s motion to compel, court concluded that keyword search performed by defendant was adequate given the circumstances of the case
Nature of Case: Employment discrimination
Electronic Data Involved: Email
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
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