Key Insight: Citing Fed. R. Civ. P. 26(b)(2)(c)(i) and (ii), court denied defendant?s motion to compel production of plaintiff?s hard drive where defendant admitted that it had not yet exhausted less intrusive or burdensome means of discovering the information sought
Nature of Case: Employment discrimination
Electronic Data Involved: Hard drive
Key Insight: Trial court did not abuse discretion by denying defendant?s motion for a copy of the hard drive containing incriminating child pornography and granting State?s motion for a protective order requiring defendant?s forensic expert to conduct examination of the hard drive pursuant to Department of Justice protocol which required the examination be undertaken at government offices under strict guidelines intended to prevent further dissemination of the images
Nature of Case: Possession of child pornography
Electronic Data Involved: Hard drive
Key Insight: Court found SEC had control of Delloitte & Touche database for purposes of Rule 34 analysis where SEC had both the practical ability and legal right to obtain the working papers contained therein but declined to compel SEC to grant access to defendant where he could obtain independent access to the database himself (by subpoena) and where the access requested would result in ?significant burdens? to SEC, including limiting its own access and interfering with the ability to view files
Nature of Case: Enforcement action for accounting fraud
Electronic Data Involved: Access to database
Key Insight: Court ordered plaintiff?s affirmative claims dismissed, for plaintiff to bear all costs reasonably incurred in connection with defendant?s efforts to obtain discovery of plaintiff?s emails, and that the jury be provided an adverse inference instruction where plaintiff engaged in egregious discovery violations, including incomplete productions, installation and use of software intended to delete relevant emails from his computer, and misrepresentations to the court, among other things
Nature of Case: Breach of employment agreement
Electronic Data Involved: Emails
Key Insight: Where defendants attested to the adequacy of their search for discovery but could not describe their search efforts in detail, court noted its inability to ?say with certainty? whether defendants had fulfilled their discovery obligations and declined to rule on plaintiff?s third motion for sanctions ?until it [was] satisfied that the standards for preservation of electronic evidence?have been met or not met?; court ordered an investigation by a third party expert into ?whether defendants have met the standard for preservation of electronic evidence and disclosed all relevant evidence? with the cost to be borne by defendants
Key Insight: Where following an order to produce relevant laptops for defendant?s expert to examine the government represented its lack of custody of such laptops, save one, and that the laptop in its possession did not contain relevant evidence but did contain materials statutorily prohibited from dissemination, court amended order to explicitly relieve the Government of the obligation to produce materials not in its possession or to produce the laptop containing materials restricted from dissemination by statute; court?s opinion explicitly affirmed defendant?s right to question the Government regarding its failure to preserve and to bring any newly discovered evidence to the court?s attention
Nature of Case: Criminal
Electronic Data Involved: Hard drive
Key Insight: Court granted motion to compel third party examination of plaintiff?s relevant computers and servers but, where one such server contained data belonging to entities not party to the litigation, court granted plaintiff?s motion for a protective order and prohibited defendant from creating a forensic copy of all programs and data on that server and prohibited defendant from viewing the data belonging to the non-parties; court also ordered plaintiff to provide an explanation for the disappearance or destruction of materials that were no longer available for production
Nature of Case: Insurance contract dispute
Electronic Data Involved: ESI on relevant computers and servers
Key Insight: Where defendants? radio log indicated a relevant communication occurred but where defendants were unable to produce the audio tape, court ordered defendant to produce its document retention policies to show ?whether the [communications] were maintained according to standard procedure?
Nature of Case: Claims arising from alleged illegal arrest and detention
Electronic Data Involved: Audio tapes of phonecalls, access to
Key Insight: Court denied plaintiff?s motion to compel production of search ?hits? from non-party?s laptop where agreed upon neutral third party conducted search, where counsel reviewed hits and concluded none were relevant, and where plaintiff provided no showing of bad faith or indicia of unreliability; court offered plaintiff option to request report indicating methods utilized in search, broad description of documents hit, and confirmation of no evidence of wiping
Electronic Data Involved: Laptop computer files
Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information
Nature of Case: Trademark infringement
Electronic Data Involved: Goldmine customer relations management database
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