Key Insight: Where plaintiff ?contumaciously defied discovery orders? by deleting materials from her hard drive that she had been directed to produce, trial court ?improvidently exercised its discretion? by failing to dismiss all of plaintiff?s claims; appellate court reversed and entered order dismissing plaintiff?s remaining claims
Nature of Case: Personal injury
Electronic Data Involved: ESI on hard drive
Key Insight: Finding ?there [was] no evidence that the electronic data was ever created, much less?discarded?, court denied plaintiff?s motion for spoliation sanctions where defendant presented evidence that the relevant GPS system had to be activated in order to record data and that the system was not activated on the date of the accident, and where no regulation or law required the GPS be activated or recording
Nature of Case: Personal Injury
Electronic Data Involved: GPS data
Key Insight: Where two years following the relevant altercation the taser used on plaintiff was sent to the manufacturer for repair, deemed irreparable, and was destroyed without preserving the data contained thereon, the court ruled the spoliation was negligent and declined to impose dispositive sanctions or evidence preclusion, but, noting it was ?troubled? by the data?s destruction, granted permission for plaintiff to file a motion in limine addressing the propriety of a rebuttable inference instruction regarding the spoliation
Nature of Case: Claims arising from detention and arrest of plaintiff which resulted in plaintiff being tasered and injured
Electronic Data Involved: Taser data
Key Insight: For the erasure of relevant surveillance tape pursuant to department practice, the trial court properly denied defendant?s request for dismissal absent evidence of destruction in bad faith because the evidence was not exculpatory but rather ?potentially useful?; for the delayed disclosure of the existence and subsequent destruction of the tape, trial court properly denied request for sanctions absent a showing of prejudice; trial court properly denied request for an adverse inference absent evidence of bad faith
Nature of Case: Criminal drug charges
Electronic Data Involved: Video surveillance tape
Key Insight: Where defendant alleged plaintiff had violated the protective order by using information contained on a hard drive and backup tapes provided by a third party to initiate additional lawsuits, court denied defendant?s motion to dismiss absent evidence of prejudice but granted third party?s motion for protective order preventing such use going forward; for plaintiff?s failure to supplement discovery, court denied motion for dismissal but gave permission for defendant?s expert to supplement report based on newly-obtained information
Nature of Case: Violation of Telephone Consumer Protection Act
Electronic Data Involved: ESI contained on hard drive, backup tapes
Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference
Nature of Case: Bankruptcy adversary proceeding
Electronic Data Involved: ESI
Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations
Nature of Case: Violations of American’s with Disabilities Act
Electronic Data Involved: Electronic versions of previously produced hard copy
Key Insight: Where defendant attached to a motion an email not previously produced and where plaintiff thereafter sought an explanation for the source of the email, access to defendant?s hard drives, and sanctions, the court found defendant had responded to discovery in good faith but ordered defendant to identify the source of the email at issue and all other hard drives containing responsive documents in its possession; where a custodian represented his hard drive had been replaced in 2006, but produced no email prior to 2007, court (without suggesting misconduct) ordered production of his hard drive to be mirrored
Nature of Case: Claims arising from the manner in which Defendants marketed and sold their properties
Electronic Data Involved: Email, hard drives
Key Insight: Where a non-party principal of defendant fabricated emails, used those emails to support defendant?s claim, and testified to their authenticity during the course of litigation, the court sanctioned the non-party and defendant and found them jointly and severally liable for payment of $100,000 – half to be paid to plaintiff and half to be paid to the clerk of the court; to sanction non-party, court reasoned that as ?the majority shareholder, chief executive, and only person affiliated with [defendant] to have a substantive role in this litigation?, ?[the principal] is RxUSA? and relied upon its inherent authority to sanction him for litigation misconduct
Nature of Case: Contract dispute
Electronic Data Involved: Fabricated emails
Key Insight: District court upheld sanction precluding defendant from presenting evidence of non-discriminatory reasons for non-promotion upon a prima facie showing of disparate treatment where defendant failed to conduct a reasonable search for responsive paper documents, despite a court order to do so, including providing ?ambiguous and deficient? search instructions to employees; failing to follow up when employees failed to uncover responsive information; and failing to credibly explain defendant?s search efforts, and where the Magistrate Judge properly concluded the sanction was proportional to the offense(s)
Nature of Case: Putative class action for discriminatory non-promotion
Electronic Data Involved: Hard copy
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