Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others
Electronic Data Involved: ESI
Key Insight: Court granted in part defendant?s motion for sanctions and ordered an adverse inference where the court determined plaintiff had a duty to preserve and that the deliberate wiping of his hard drive was in bad faith but declined to impose monetary sanctions or dismissal where plaintiff?s actions were not found to be sufficiently egregious, where plaintiff was forthcoming about the spoliation and his reasons (to protect personal and privileged information contained on the work-issued laptop), and where defendant had a substantial amount of the deleted material on backup tapes, etc. because of its backup practices
Nature of Case: Employment litigation
Electronic Data Involved: ESI from laptop
Key Insight: Where relevant documents were discovered upon forensic examination of a relevant hard drive and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute Defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs’ motion for spoliation sanctions
Nature of Case: Employment litigation
Electronic Data Involved: ESI
Key Insight: In a case where defendant tried to ?pull a fast one? by altering material terms to a contract and inducing plaintiff to sign it, defendant sought but was repeatedly unable to procure production of defendant?s laptop — which it suspected was used to alter the contract — and when the laptop was produced, it had been substantially damaged. Moreover, evidence indicated that defendant had destroyed relevant cell phone records and emails and that defendant?s counsel made repeated misrepresentations to the court. Thus, the court struck defendant?s pleadings as a sanction.
Nature of Case: Declaratory judgment that contract was invalid because procured by fraud
Electronic Data Involved: Laptop
Key Insight: Where defendant argued that its failure to issue a specific litigation hold was mitigated by prior imposition of a no-delete policy which would have prevented any loss of evidence, the court determined it needed additional information on the scope of the policy and ordered defendant to provide information to determine if the scope of the policy was sufficiently broad and how it was communicated to employees; where defendant acknowledged that it did not search certain individual computers because all files created were to be saved in the ?My Documents? folder which was saved to a network server, the court noted the lack of assurance that employees followed the default settings and that they did not save ESI in folders outside of ?My Documents? and thus ordered a search of particular employees? computers using Plaintiff?s key word search terms
Electronic Data Involved: ESI
Key Insight: Where relevant documents were discovered upon forensic examination and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs motion for spoliation sanctions
Nature of Case: Emploment Litigation
Electronic Data Involved: ESI
Key Insight: Where Plaintiff was able to establish that defendant destroyed ESI while under a duty to preserve but was unable to establish that she was actually prejudiced by the loss, the court denied Plaintiff?s motion for sanctions without prejudice and, noting that it was ?troubled? by Defendant?s preservation failures and counsel?s apparent failure to oversee his client?s discovery efforts, the court sua sponte reopened discovery solely as to the issue of spoliation
Nature of Case: Unlawful termination under Age Discrimination in Employment Act
Electronic Data Involved: Email, ESI
Key Insight: Reviewing District Court?s denial of spoliation sanctions for abuse of discretion, Circuit Court found that the at-issue information should have been preserved and was intentionally destroyed but upheld the denial of sanctions based on plaintiffs? inability to establish relevance, a necessary element of the test for determining whether sanctions are appropriate
Nature of Case: Employment discrimination
Electronic Data Involved: ESI (Survey results)
Key Insight: Noting that the ?offending party?s degree of fault and the corresponding prejudice suffered by the non-offending party? were the ?most important? factors for consideration when determining whether to impose sanctions, court denied request for spoliation sanctions where the information Plaintiff alleged was spoliated was not relevant to the issues in the case, where Plaintiff merely speculated that the lost information would support his case, and where Plaintiff could have obtained the information from third parties but chose not to
Nature of Case: Defamation
Electronic Data Involved: Hard drives containing certain allegedly relevant communications
Key Insight: Court granted motion to allow forensic imaging of plaintiff?s computers for purposes of discovery where plaintiff?s production of ESI was very small, where plaintiff?s CIO admitted he had taken no efforts to retrieve any ESI, and where it was established that ESI may be present on plaintiff?s computers?possibly including electronic copies of hard copy documents which may have been shredded; court?s order called for court-appointed forensic expert to conduct examination and established other protocols to be followed
Nature of Case: Breach of insurance contract
Electronic Data Involved: ESI
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