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: Court directed plaintiff to identify ?the lowest-paid employee of the data forensics company who is (a) knowledgeable about the process by which the data was extracted from defendant?s computer, and (b) able to give a deposition? by court?s deadline; court further ruled that defendant would be permitted to depose that employee for up to four hours, provided that defendant must pay for employee’s time at same hourly rate that had been billed to plaintiff; court encouraged counsel to take the deposition by telephone
Nature of Case: Misappropriation, breach of loyalty
Electronic Data Involved: Deleted documents recovered from defendant’s computer
Key Insight: On joint motion for clarification of court’s December 27, 2006 order, court approved parties’ agreed search term protocol but denied plaintiff’s request for list of ?hits? generated by searches; court further approved joint request for expert to provide information concerning defendants’ usage of their computer equipment, specifically: (1) use of erasure software or ?defragmentation? software; (2) use of detachable, portable storage media to access or download files; (3) evidence of mass deletions of files; and (4) evidence of large gaps in the contents of the files
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: Hard drives, deleted email and other files
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: Overruling plaintiff’s objection that magistrate judge’s sanctions order did not go far enough and should have required defendant to retain a computer forensic expert to examine surveillance equipment to determine whether deleted images were recoverable, court found that order was neither clearly erroneous nor contrary to law since defendant had produced affidavit of individual who personally installed and serviced the surveillance system who stated that he inspected the surveillance data system and determined that the images were not recoverable
Nature of Case: Customer asserted federal civil rights claims arising from his detention by store security guards
Electronic Data Involved: Surveillance video
Key Insight: Where witness testified at his deposition that he did not recall receiving plaintiff?s litigation hold memorandum and had deleted unspecified email to ?clean up,? and plaintiff subsequently conducted forensic search of deponent?s computer hard drive, recovered available deleted emails and stated it would produce responsive email not previously produced, court found that defendant failed to establish two necessary elements of spoliation, since evidence was insufficient to show there were any ?missing? emails that would constitute “evidence,” or that any of the “missing evidence” was crucial to defendant’s claims or defenses
Nature of Case: Misappropriation of trade secrets
Electronic Data Involved: Email
Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge
Nature of Case: Employment discrimination
Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer
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: Court granted motion to compel on variety of e-discovery topics and ordered defendant to allow plaintiffs? expert reasonable access to (1) phone system and backup system for purpose of recovering inadvertently overwritten phone logs and (2) appropriate personal computers or computer network in order to search for particular documents; plaintiffs further allowed to take Rule 30(b)(6) deposition concerning defendant?s computer network, phone system, and document retention and destruction practices
Nature of Case: Plaintiffs alleged violations of the Fair Labor Standards Act
Electronic Data Involved: Email and other ESI
Key Insight: Where former employee admitted using file shredder program on his NSA-issued laptop before returning it, and evidence showed use of file shredder program on competitor-issued laptop computer, court found defendants? conduct was ?egregious? and amounted to spoliation but denied plaintiff?s request for entry of default judgment; court instead ordered production of computer hard drive for further examination, dismissed defendants? counterclaims, and ordered defendants to pay attorneys? fees and expenses incurred as a result of defendants? misconduct
Nature of Case: Seller of computer hardware and software sued former employee and competitor for misappropriation of trade secrets, unfair competition and related claims
Electronic Data Involved: Laptop computers
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