Key Insight: Texas Supreme Court 7 part test for proportionality- benefit, case needs, amount in controversy, parties’ resources, issues at stake, importance of proposed discovery and other articulable factors. Brought Texas in line with FRCP.
Nature of Case: Homeowner Insurance Claim Litigation
Electronic Data Involved: Insurer Records
Keywords: Format of Production; Proportionality Factors
Key Insight: defendant ordered to produce Salesforce “background data” without cost shifting
Nature of Case: wage and hour
Electronic Data Involved: salesforce “background data”
Keywords: background data; cost shifting; gap in records
Key Insight: Defendant had attempted to remove plaintiff as manager of two LLCs during divorce. Plantiff showed evidence of inconsistent metadata within defendant’s key documents. Court ruled defendant did not have right to remove plaintiff and documents showing otherwise were not reliable.
Nature of Case: Validity of Removal of Manager of LLC
Electronic Data Involved: LLC Agreements and Related Documents
Keywords: Metadata; Sanctions
Key Insight: Sanctions not found because VHS degrades naturally and missing reports were not proven relevant
Nature of Case: false arrest
Electronic Data Involved: video VHS, lost original tape, paper documents
Keywords: 37(e) ignored, lost original tape, missing reports, culpable state of mind
Key Insight: Parties may request specific format type of documents and opposing party must timely object to change format
Nature of Case: Education access
Electronic Data Involved: Emails
Keywords: Native format, FAPE, free appropriate public education, Individuals with Disabilities Education Improvement Act
Key Insight: ordered to produce original emails between parties with metadata not versions forwarded to law office
Nature of Case: breach of contract
Electronic Data Involved: emails and metadata
Keywords: farm sale, email metadata
Key Insight: Defendant sought production of a complete copy of a Microsoft Access database utilized by patent?s co-inventor to input his formulas to assess the legitimacy of the claimed conception date. Plaintiff argued the database did not ?maintain metadata like word processing or spreadsheet programs do? and also that the database, maintained by a third-party, contained proprietary information of non-parties. Defendant maintained the stipulated protective order would protect the third-party proprietary information and that Plaintiffs had not argued that they would incur ?undue hardship or expense? in producing the database with its metadata. The court granted Defendant?s motion to compel production of the database and metadata for forensic analysis.
Nature of Case: Patent infringement
Electronic Data Involved: Microsoft Access Database
Key Insight: Plaintiff, arguing Defendant?s contract was backdated, moved for sanctions after Defendant discarded computers (2 years after the action commenced) containing native information and system metadata for the contract at issue. The contract?s creation date was at issue in this case and Defendant had not indicated that it preserved the metadata before discarding the computers (which was not a regular or automatic event but rather a ?curiously fortuitous occurrence?). In considering sanctions, the court concluded that Defendant?s submission of an affidavit indicating that the computers were replaced and discarded did not ?rebut the presumption that Casa was negligent, even grossly negligent? and found that a negative inference at trial would be ?sufficient to strike a balance between the need to ameliorate any prejudice related from the destruction of the computer system, and the absence of demonstrable willfulness ??
Nature of Case: Breach of contract
Electronic Data Involved: Metadata
Key Insight: Addressing question of spoliation related to surveillance video of prison assaults, court concluded that ?traditional? spoliation analysis (as opposed to analysis pursuant to newly amended FRCP 37(e))
Nature of Case: Claims arising from assault in prison
Electronic Data Involved: Surveillance video
Key Insight: required to provide privilege log metadata because log was inadequate
Nature of Case: breach of contract, breach of fiduciary duty
Electronic Data Involved: privilege log metadata
Keywords: privilege log, metadata
Copyright © 2022, K&L Gates LLP. All Rights Reserved.