Key Insight: Can the court order additional discovery if a party destroys evidence? Is a prejudice ruling required in a destruction of evidence case?
Nature of Case: Retaliation and discharge
Electronic Data Involved: text messages, emails, social media messages
Keywords: Prejudice, Destruction of evidence, Social media, Text messages
Key Insight: whether an order of default judgment amounts to abuse of discretion given finding of bad faith
Nature of Case: patent infringement / misappropriation of trade secrets
Electronic Data Involved: deleted electronic records
Keywords: spoliation, overwriting, internal clock, laptop, forensic investigation, intent, bad faith, prejudice, ability to control, litigation hold notice, default judgment, adverse inference, deterrence
Key Insight: Spoliation,
Nature of Case: Trade Secrets
Electronic Data Involved: E-mail accounts, electronic evidence, electronic storage devices, personal and work computers, cloud storage accounts
Keywords: Spoliation, Hot Sheets,
Key Insight: Plaintiff failed to respond to discovery requests. Plaintiff also used data wiping software hours before turning computer over for forensic examination. Defendant granted default judgment.
Nature of Case: Repossession/Ownership
Electronic Data Involved: Files on Computer
Keywords: default judgment, contempt, data wipe
Key Insight: Whether plaintiff?s failure to demonstrate allegations leads to summary judgment for defendant
Nature of Case: Copyright Infringement
Electronic Data Involved: external hard-drive, internal hard-drive
Keywords: bittorrent, torrent
Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney
Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”
Electronic Data Involved: ESI, hard drive, text messages (iphone)
Key Insight: Court granted in part plaintiff?s motion for attorneys? fees, where defendant had used software to wipe a PC and a laptop, deleting and overwriting more than 62,000 files, and violated a court order, and stalled the discovery process. Court denied in part plaintiff?s motion for sanctions, however, instead granting leave for new depositions, saying that while its order ?does not address the loss of evidence that may establish willful infringement,? the alleged infringing materials ?are available for the jury to assess whether infringement has incurred or not.?
Nature of Case: Trade dress and Trademark infringement
Electronic Data Involved: Email and ESI on hard drive
Key Insight: Because defendant was able to examine the subject cell phone with its expert, court ruled that plaintiff should also have the ability to examine the phone to determine if additional relevant text or voicemail messages exist or if there is evidence that text or voicemail messages were deleted, and ordered defendant to produce the current and old cell phones to plaintiff’s expert; court deferred ruling on other requested sanctions as premature and found that neither side was entitled to attorneys’ fees in connection with the motion
Nature of Case: Michigan Whistleblower Protection Act and breach of contract
Electronic Data Involved: Text messages and voicemail messages on cell phone of plaintiff’s former co-worker
Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration
Nature of Case: Wrongful termination
Electronic Data Involved: E-mail, internet usage logs, and other ESI
Key Insight: Forensic examination of defendants’ electronic devices was appropriate given nature of case and allegations against individual defendants; court identified particular devices to be examined and provided specific guidelines for the examination and review of ESI, but denied plaintiff’s request for attorneys’ fees since defendants’ objections were reasonable; court further ruled that costs associated with obtaining the information from the devices would be borne by plaintiff
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: ESI on defendant’s electronic devices
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