Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation
Electronic Data Involved: ESI
Key Insight: Court found defendant?s arguments failed to establish undue burden and reasoned that defendant could not escape its discovery obligations ?because it has chosen to store those documents in a way that makes it difficult for Defendant to search for them,? that defendant?s estimations were based on ?a wider scope of documents than what Plaintiff is seeking,? and that defendant failed to provide sufficient detail to evaluate its argument
Electronic Data Involved: Employer issue laptop and contents
Key Insight: Denying plaintiffs? motion for sanctions the court distinguished the cases of Lee v. Max Int., LLC, 638 F.3d 1318 (10th Cir. 2011) and Phillip M. Adams & Assoc., LLC v. Dell, Inc., 621 F. Supp. 2d 1173 (D. Utah 2009), found the defendant had not acted in bad faith, and rejected plaintiffs assertions that the duty to preserve arose from obligations to maintain information pursuant to corporate policy or an obligation to the government; noting that most relevant documents were from the 1990?s, the court also acknowledged that even where a preservation obligation exists, the passage of time can result in the inadvertent destruction or misplacement of evidence and the fading of human memories
Electronic Data Involved: Unspecified in opinion
Key Insight: Addressing plaintiff?s motion for sanctions court laid out relevant law of spoliation and found that defendants had a duty to preserve relevant evidence but declined to impose sanctions where plaintiff failed to establish that allegedly spoliated emails were relevant; where plaintiff failed to establish that additional SERT video existed or was relevant to his claims; and where plaintiff failed to establish prejudice from unproduced booking video, particularly where he presented conflicting assertions regarding its relevance (where he at once moved to preclude presentation of evidence related to the underlying offense or arrest and sought sanctions for the booking video?s spoliation)
Electronic Data Involved: Emails, video
Key Insight: Addressing post-judgment discovery issues, including plaintiff and receiver?s request to have certain hard drives imaged, court rejected defendants? claim that certain computers contained privileged information where those assets were sold to a third-party and thus any privilege was waived; court further ordered that personal computer and ipad belonging to an individual defendant should be imaged for preservation purposes, to be retained by the expert performing such imaging pending further orders from the court
Electronic Data Involved: Business and personal hard drives and ipad
Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?
Electronic Data Involved: Hard drive
Key Insight: Where it was undisputed that Defendant instructed a non-party witness to delete relevant emails on his computer and that the non-party complied, court granted in part plaintiff?s motion for sanctions and ordered that defendant and the non-party preserve all ESI going forward, that defendant and the non-party submit their computers for forensic examination to recover deleted emails and to gather native format versions of information previously produced ?as fixed images,? that defendant pay the cost of the forensic examinations, and that defendant bear plaintiffs? attorneys costs and fees for preparing the underlying motion
Electronic Data Involved: Emails, ESI
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: 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: Court denied motion for sanctions for defendant?s loss of server logs where the court determined that the logs were of minimal relevance to plaintiff?s claims and where the logs ?rolled over? in the usual course of business prior to the trigger of defendant?s duty to preserve
Nature of Case: Violation of FMLA and ADA, employment discrimination, intentional infliction of emotional distress
Electronic Data Involved: Server logs
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