Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.
Nature of Case: Failure to accomodate
Electronic Data Involved: Email
Key Insight: Where defendants failed to record data stored on crane?s computer following death of two construction workers, but where plaintiffs offered no evidence to support their allegations that the data was manually destroyed or that the failure to photograph the display was unreasonable and where defendants presented evidence that data could not be downloaded from the crane?s computer and plaintiff failed to request the information downloaded in the first place, court declined plaintiffs motion for spoliation sanctions
Nature of Case: Negligence resulting in death
Electronic Data Involved: ESI stored on crane’s internal computer
Key Insight: Despite finding defendants ?intentionally destroyed relevant documents at a time when litigation was foreseeable? the court declined to award sanctions where it was not established the documents were ?critical for proving? plaintiff?s case, a prerequisite for such sanctions under Florida law
Nature of Case: Action for breach of contract, spoliation, breach if implied warranties
Electronic Data Involved: Hard copy and ESI
Key Insight: Where it remained ?entirely unclear? that defendant performed a ?full and thorough search? for responsive ESI, court ordered defendant to perform a ?comprehensive examination of all electronic storage? and to provide certification of the search to plaintiff; as sanction for ?failing to even search for certain evidence,? court prohibited defendant from re-filing its motion for summary judgment as to two of plaintiff?s claims
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Court imposed terminating sanctions against plaintiff and monetary sanctions upon counsel for egregious discovery abuses; client?s abuses included refusal to produce relevant information despite agreement and/or a court order to do so and willful installation of a new operating system on a computer subject to preservation and production, among other things; counsel?s abuses included delay in responding to discovery, misrepresentations to the court and opposing counsel, and refusal to produce relevant information despite a court order
Nature of Case: Wrongful termination/ sexual harassment
Electronic Data Involved: ESI
Key Insight: Where defendant established plaintiff?s breach of its duty to preserve emails by failing to timely issue litigation hold notices to all ?key players? but failed to establish defendants? bad faith or the relevance of the lost messages, court declined to impose adverse inference sanctions but ordered monetary sanctions, including defendant?s attorneys fees associated with the motion
Nature of Case: Contract dispute
Electronic Data Involved: Emails, other ESI
Key Insight: In very long and complicated tax litigation, court found no spoliation absent a duty to preserve where, at the time the data was lost due to migration to a new email system, plaintiffs were involved in routine audit and administrative procedures likely to resolve the relevant dispute and thus had no reason to believe litigation would necessarily ensue (?Indeed, not every dispute with the IRS leads to litigation or ?anticipates? litigation); where counsel provided contradictory statements as to whether litigation was anticipated such that a duty to preserve would have arisen, court determined counsel was essentially unreliable and thus relied on ?other testimony or exhibits? and relied on counsel?s testimony only ?sparingly, when it was uncontested?
Nature of Case: Tax litigation
Electronic Data Involved: Emails
Key Insight: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for ?versions of all emails sent by or to Plaintiff? and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought
Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act
Electronic Data Involved: ESI, Privileged ESI
Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve
Nature of Case: Misrepresentations and fraudulent inducement
Electronic Data Involved: Backup tapes
Key Insight: Where defendants sought dismissal or a new trial based upon plaintiff?s loss of an audiotape of the meeting in which he was terminated, court declined to grant the requested sanctions upon finding that no litigation was pending at the time of the loss, that any prejudice to defendants was small, that plaintiff?s degree of culpability was small and where there was no evidence of bad faith; court nonetheless indicated its willingness to consider the loss in any claims for fees or costs citing plaintiff?s failure to disclose the existence and loss of the tape which resulted in expenses to defendants to settle the dispute
Nature of Case: Wrongful termination
Electronic Data Involved: Audio tape
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