Key Insight: Award of attorney?s fees for investigation into possibility of spoliation where defendant failed to institute a litigation hold was proper, even where no spoliation was established, because the ?non-breaching party still has suffered damages in the context of attorneys? fees and costs? as a result of the need to perform the investigation
Electronic Data Involved: ESI
Key Insight: Court denied plaintiff?s motion for an adverse inference for defendant?s loss of potentially relevant video surveillance tape where plaintiff failed to articulate how the tape would depict anything not already represented in available still photos and thus did not establish that the tape was sufficiently relevant to warrant the requested sanction; court ordered plaintiff was entitled to attorneys? fees and costs for the motion and for her efforts to determine whether the accident had been recorded
Nature of Case: Slip and Fall
Electronic Data Involved: Video surveillance tape
Key Insight: Where defendants indicated that a relevant hard drive had crashed and been disposed of but that some relevant information had been recovered and where plaintiff was unable to establish that defendants acted in bad faith, court found defendants were grossly negligent in their failure to preserve the relevant hard drive which resulted in prejudice to the plaintiff and ordered a ?spoliation charge? allowing but not requiring the jury to determine whether the spoliation warranted an adverse inference; opinion includes comprehensive discussion of relevant law and standards surrounding spoliation
Nature of Case: Racketeering and fraud
Electronic Data Involved: Hard drive
Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order
Nature of Case: SEC investigation
Electronic Data Involved: ESI
Key Insight: Where defendant?s contractor produced CAD files with incorrect creation dates and was subsequently ordered to produce his computer for inspection in an unaltered state, but ran a file-deletion or ?computer cleaning/wiping? program named ?CCleaner? the night before delivering the computer for inspection, court found that sanctions were appropriate to keep defendant from benefitting from contractor?s intentional conduct and to deter others from similar conduct in the future; contractor would not be allowed to testify at trial, all evidence that originated with contractor would be excluded, defendant would not be allowed to rely on contractor?s deposition testimony for summary judgment purposes or at trial, and defendant was required to pay plaintiff?s reasonable attorneys? fees and cost of forensic investigation conducted by plaintiff?s forensic expert
Nature of Case: Patent infringement, misappropriation of trade secrets, unfair competition
Electronic Data Involved: Hard drives of defendant’s contract CAD software operator; metadata and contents of CAD files
Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000
Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud
Electronic Data Involved: ESI, including QUickbooks
Key Insight: Court found defendant?s arguments failed to establish undue burden and reasoned that defendant could not escape its discovery obligations ?because it has chosen to store those documents in a way that makes it difficult for Defendant to search for them,? that defendant?s estimations were based on ?a wider scope of documents than what Plaintiff is seeking,? and that defendant failed to provide sufficient detail to evaluate its argument
Electronic Data Involved: Employer issue laptop and contents
Key Insight: Where plaintiffs sought to compel production of defendant?s litigation hold and a list of its recipients, court identified the underlying question as whether defendant?s duty to preserve extended to all potential opt-in plaintiffs and found that plaintiffs? significant delay in moving for conditional certification and the indirect nature of the evidence sought distinguished the case from Pippins v. KPMG and that plaintiffs failed to make the necessary preliminary showing of spoliation (which would justify production of the litigation hold notice) because they did not establish ?that documents that should have been preserved? were lost or destroyed; court granted defendant?s motion for sanctions for opt-in plaintiff?s spoliation of hard copy evidence (originals of a calendar indicating her daily activities, two disparate copies of which had been produced) and ordered that she be precluded from testifying as to her daily work activities during a three year period
Nature of Case: FLSA Class action
Electronic Data Involved: litigation hold notice, hard copy calendar
Key Insight: Where Toyota conducted inspection of relevant Event Data Recorder without providing plaintiffs the opportunity to be present but where there was no showing of actual alteration or deletion of relevant data, court declined to impose terminating sanctions and ordered a cautionary instruction be given to the jury; court also credited plaintiff?s evidence regarding a dispute surrounding the location of a plastic piece in plaintiffs? engine, which was allegedly moved by Toyota representatives during their inspection, and ordered an evidentiary instruction stating that the Toyota representatives testimony regarding the plastic piece should be regarded with ?greater caution? than that of other witnesses
Nature of Case: Personal injury/product liability
Electronic Data Involved: Event Data Recorder data and plastic piece in engine
Key Insight: Court granted motion for sanctions and ordered an adverse inference for trial where defendant was grossly negligent in its destruction of relevant emails (as proven by Plaintiff?s receipt of relevant emails from third parties that should have been in defendant?s possession, for example, and defendant?s failure to dispute the existence of certain emails which were relevant to plaintiff?s claims but which were not produced); court found defendant was ?at least negligent? in its failure to preserve (and later found that defendant was grossly negligent) where the city had no formal email retention policy and instead relied on its employees to determine what to save: ?Because the City has effectively conceded that it had a duty to preserve the e-mails in question, its failure to maintain a formal e-mail retention policy was at least negligent.?
Nature of Case: Violation of constitutionally protected property rights based on Stop Work Order
Electronic Data Involved: ESI
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