Key Insight: petitioner’s motion for contempt, subpoena enforcement
Nature of Case: subpoena duces tecum issued by US Dept. of Labor to Respondent, a roofing company. Workplace safety violations and follow-up inspections..
Electronic Data Involved: text and email messages
Keywords: subpoena duces tecum, failure to take reasonable steps to comply with the order
Key Insight: Lack of cooperation and deception on production does not lead to terminating sanctions if evidence was not actually destroyed but does lead to adverse inferences and cost shifting
Nature of Case: Unfair Competition
Electronic Data Involved: Electronic records
Keywords: CrossFit, terminating sanctions, perjury
Key Insight: Failure to issue a litigation hold, misrepresentation that a hold had been issued, spoliation of evidence, attorney fee award.
Nature of Case: water-protection law violation
Electronic Data Involved: Not specified. However, likely, email and other electronic records.
Keywords: spoliation, litigation hold, lodestar calculation, special master.
Key Insight: Sanction and adverse inference inappropriate because nothing lost/destroyed was highly probative
Nature of Case: Excessive force
Electronic Data Involved: emails, reports
Keywords: adverse inference
Key Insight: Defendant has inadequate production even when supplemented. Judge ordered meet-and-confer to work out some of the disagreements. Judge did not give either side sanctions.
Nature of Case: Breach of Contract; Consumer Fraud
Electronic Data Involved: E-mail; Electronic Database
Keywords: Meet-and-confer; Inadequate Production; Supplemental Production
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: Conduct discovery in good faith; Maintain a civil tone in communications; Purge of emails
Nature of Case: Employment Discrimination
Electronic Data Involved: ESI; email; SMS; Text messages
Keywords: Good Faith; Proportionality; Meet and confer; Rule 16 – Scope of discovery; Purge of emails; Complete breakdown of discovery
Key Insight: Court said 37(e) doesn’t apply when recording was intentionally deleted. Adverse inference granted for plaintiff’s deletion of an audio tape, despite its subsequent recovery and production from a hard drive backup.
Nature of Case: sexual harassment at work
Electronic Data Involved: audio tape, hard drive backup
Keywords: adverse inference, over-preservation concerns
Key Insight: Whether a determination of an inadvertent production of documents was erroneous or that the attorney didn’t follow reasonable steps to prevent disclosure.
Nature of Case: Personal Injury, insurance bad faith
Electronic Data Involved: Inadvertently produced documents, produced work product/ACP
Keywords: work product, inadvertent disclosure, claw back, reasonable steps to avoid disclosure
Key Insight: ESI “willfully discarded or deleted”
Nature of Case: Alleged violations of the electronic Communications Privacy Act against defendants accused of stealing plaintiff’s clients and confidential information.
Electronic Data Involved: defendant’s iPhone, laptop and external hard drive
Keywords: adverse-inference instruction, forensic examination of a flash drive.
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