Key Insight: Court adopted magistrate judge?s recommendations and denied plaintiff?s motion for sanctions for intentional spoliation of website content, despite defendants’ failure to suspend its policy allowing content to be edited, where evidence showed that no edits were made to the content at issue and thus plaintiff suffered no prejudice
Nature of Case: Defamation
Electronic Data Involved: Website contents
Key Insight: Where defendant repeatedly violated its discovery obligations, including making misrepresentations of unavailability despite later revelations that documents were available from shared electronic source, and in light of explanations ?entirely unworthy of credence,? among other things, court struck answer of defendant and ordered judgment by default to plaintiff on issue of liability
Nature of Case: Claims arising from the Fair Credit Reporting Act
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff?s motion to compel, despite acknowledgement that requested information could ?slightly bolster plaintiff?s claims,? where the requests were either ?overly broad, unnecessarily cumulative, or plainly irrelevant? and where plaintiff did not indicate the information was necessary to survive the pending motion for summary judgment; court also denied motion for spoliation sanctions for destruction of certain data and surveillance video where plaintiff did not show resulting prejudice, but left open the possibility of an adverse inference instruction if defendant chose to reference the allegedly spoliated information at trial
Nature of Case: Employment discrimination
Electronic Data Involved: ESI, surveillance tape
Key Insight: Where plaintiffs did not deny their failure to preserve relevant documents previously in their possession, did not deny their failure to search for documents demanded, save one plaintiff who limited search to what he described as ?reasonably accessible? information, did not deny their failure to supplement their responses to interrogatories as promised, and did not deny providing contradictory answers regarding documents in their possession, court rejected arguments that sanctions were unnecessary because of a lack of resulting prejudice and arguments that the documents were ?barely relevant? and ordered an adverse inference instruction in favor of defendants
Nature of Case: Violation of Aviation and Transportation Security Act and Privacy Act
Electronic Data Involved: ESI
Key Insight: Court found that defendant violated temporary restraining order by failing to disclose certain relevant emails and other ESI discovered following forensic examination of defendant?s computer and rejected defendant?s assertions that the failure resulted from his lack of understanding of his discovery obligations, mistake of his counsel, and his own lack of computer savvy; Court ordered defendant to pay attorneys? fees and costs attributable to the additional discovery and motions practice undertaken as a result of non-disclosure
Nature of Case: Trademark infringement
Electronic Data Involved: ESI, email
Key Insight: Finding that defendants? first, second, and third productions were ?patently inadequate? and that ?representations by defendants and their attorneys as to the completeness of production were false,? court concluded plaintiffs had incurred some expense as a result of defendants? discovery behavior and that ?the required expenditure of funds to pursue discovery is prejudice enough to justify cost-shifting?; addressing plaintiffs? specific request to shift costs related to the search of back-up tapes resisted by defendants, court declined to shift costs where plaintiffs had not proposed an electronic discovery plan at the outset of litigation and where plaintiffs failed to meaningfully address Fed. R. Civ. P. 26(b)(2) in their briefing
Nature of Case: Trademark infringement
Electronic Data Involved: ESI, database information, back up tapes
Key Insight: Where defendants recreated documents sought by plaintiff using raw data after destroying copies of the original document pursuant to its document retention policy and where plaintiff offered no evidence to ?reasonably question? such a practice or that any data was destroyed in anticipation of litigation, court found insufficient evidence to support an adverse inference
Nature of Case: Breach of contract claims arising from denial of insurance claim
Electronic Data Involved: Original declaration sheet
Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold
Nature of Case: Predatory pricing
Electronic Data Involved: Email, ESI
Key Insight: District Court found Magistrate Judge?s decisions denying plaintiff?s motions to compel third-party?s production of forensic image of its computer systems or a report from those systems ?were neither clearly erroneous or contrary to law? where Magistrate denied the motions in light of plaintiffs lack of diligence, contradictory opinions from experts, and factual evidence indicating a minimal amount of relevant data on third-party?s system and where Magistrate was therefore within the scope of her discretion
Nature of Case: Violation of Trade Secrets Act, Computer Fraud Abuse Act and terms of employment contract
Electronic Data Involved: ESI, forensic image of hard drive
Key Insight: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant?s lack of ?know-how? or ?resources? to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants? hard drives upon forensic inspection; where plaintiffs presented ?clear and convincing evidence? that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case
Nature of Case: Misappropriation of customer information
Electronic Data Involved: Hard drives, ESI
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