Cases
Federal Government Resources
State Resources
Cases
Case Cite Description
Multiven, Inc. v. Cisco Sys., 2010 U.S. Dist. LEXIS 71221 (N.D. Cal. July 9, 2010) | Court order retention of third party vendor to assist with document review and production. |
Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., Amended Order, Case No. 05-cv-9016 (SDNY May 28, 2010) | Order amending previous order, clarifying negligence issue. |
Mt. Hawley Ins. Co. v. Felman Prod., Inc., 2010 U.S. Dist. LEXIS 49083 (S.D. W. Va. May 18, 2010) | Failure to test keywords by sampling a prominent consideration in finding waiver. |
Merck Eprova AG v. Gnosis S.P.A. et al., 2010 U.S. Dist. LEXIS 38867 (S.D.N.Y. Apr. 20, 2010) | Failure to issue written litigation hold results in costs, attorney’s fees and $25,000 in monetary sanctions. |
In re A & M Fla. Props. II, LLC, 2010 Bankr. LEXIS 1217 (Bankr. S.D.N.Y. Apr. 7, 2010) | Counsel's failure to become familiar with Plaintiff's retention system and policies resulted in monetary sanctions for production delay. |
Qualcomm Inc. v. Broadcom Corp., 05-CV-1958-B(BLM) Doc. 998 (S.D. Cal. Apr. 2, 2010) | Order declining to impose sanctions against responding attorneys and dissolving the order to show cause. |
Universal Delaware Inc. v. Comdata Corporation, 2010 U.S. Dist. LEXIS 32158 (E.D. Pa. March 31, 2010) | Court orders partial production costs & privilege review to shift to non-party. |
Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 U.S. Dist. LEXIS 32982, (W.D.N.Y. Mar. 31, 2010) | Plaintiff grossly negligent for not issuing a legal hold. |
Wilson v. Thorn Energy, LLC, 2010 WL 1712236 (S.D.N.Y. Mar. 15, 2010) | Failure to copy flash drive files, prior to its failure, violated duty to preserve. |
| Hodczak v. Latrobe Specialty Steel Co., 2010 U.S. Dist. LEXIS 21267 (W.D. Pa. Mar. 9, 2010)> | Denial of plaintiffs' motion to compel discovery of a hard drive and a digital camera and memory stick upheld when 400,000 email messages from 200 custodians were searched using plaintiff’s search protocol. |
In re: Venom, Inc., 2010 Bankr. LEXIS 72 (E.D. Pa. Mar. 9, 2010) | Plaintiff to bear additional litigation expense of acquiring documents when software license lapsed prior to the close of discovery |
United States v. La. Generating LLC, 2010 U.S. Dist. LEXIS 20207 (M.D. La. Mar. 5, 2010) | Parties entered into an agreement on what NOT to preserve. |
Rimkus Consulting Group, Inc. v. Cammarata, 2010 U.S. Dist. LEXIS 14573 (S.D. Tex. Feb. 19, 2010) | Defendant sanctioned for intentionally deleting emails after a duty to preserve had clearly arisen. |
Secure Energy, Inc. v. Coal Synthetics, 2010 U.S. Dist. LEXIS 13532 (E.D. Mo. Feb. 17, 2010) | Court denies request for production in native format where requestor failed to ask for native initially and motion to compel is untimely. |
Rodriguez-Torres v. Governmental Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. Jan. 20, 2010) | ESI fishing expedition denied. |
Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, No. 05-9016, 2010 U.S. Dist. LEXIS 1839 (S.D.N.Y. Jan. 15, 2010) | Judge Scheindlin defines gross negligence as it pertains to spoliation. |
Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al., Amended Order, Case No. 05-cv-9016 (SDNY Jan. 15, 2010) | Order amending previous order. |
MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 2010 WL 519753 (N.Y. Sup. Ct. Jan. 14, 2010) | Defendant "Fails to Show that it is Settled Law that the Party Requesting Discovery Must Bear the Cost of Production," Court Denies Motion for A Protective Order. |
Silverstein v. Federal Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009) | No FRE 502 protection when disclosure and requested return were one year apart. |
Multiquip, Inc. v. Water Management Systems LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009). | Attorney-client privilege was not waived under Fed. R. Evid. 502 for an email chain inadvertently disclosed outside of the discovery process. |
| Cenveo Corp. v. Southern Graphic Systems, 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009). | Request for production of documents in their "native format" was unambiguous, and "native format" did not have to be defined in order to specify the form of production within the meaning of Fed. R. Civ. P. 34(b)(2)(E)(ii). |
| Major Tours, Inc. v. Colorel, “Major Tours II”, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009). | Because of undue burden and cost, defendants were not required to retrieve email from 2500 backup tapes at an estimated cost of $1.5 million. However, a scaled-back restoration of 15 to 17 backup tapes was ordered if plaintiff chose to pay half the cost of the restoration. |
| Smith v. Life Investors Insurance Company of America, 2009 U.S. Dist. LEXIS 96310 (W.D. Pa. Oct. 16, 2009). | Defendant had a duty to demonstrate its search methodology was reasonable, which could be done through identification of the keywords used, an explanation of the qualifications of those selecting the keywords, and proof of quality assurance testing. |
| Tango Transport, LLC v. Transport International Pool, Inc., 2009 U.S. Dist. LEXIS 93930 (W.D. La. Oct. 7, 2009). | Request for an adverse inference against plaintiff for loss of information resulting from an inadequate litigation hold was denied for failure to show the lost information would have been admissible and was not available elsewhere. |
| Swofford v. Eslinger, 2009 U.S. Dist. LEXIS 111064 (M.D. Fla. Sept. 28, 2009). | In-House Counsel sanctioned for defendant’s failure to preserve evidence. |
| Green v. McClendon, 2009 U.S. Dist. LEXIS 71860 (S.D.N.Y. Aug. 13, 2009) | Court orders monetary sanction for failure to preserve to be paid by defendant and counsel. |
In re NuvaRing Products Liability Litigation, E.D. MO 4:08MD1964RWS, Aug. 11, 2009 | NuvaRing maker ordered to pay e-discovery costs. |
| Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009) | Company did not waive work-product protection when it inadvertently gave its adversary in a business dispute an e-mail message that was shielded by FRE 502. |
Major Tours Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 | Court finds evidence of spoliation makes hold letters discoverable. |
Pinstripe, Inc. v. Manpower, Inc., 2009 U.S. Dist. LEXIS 66422 (N.D. Okla. July 28, 2009) | Finding defendant may have caused the deletion of possibly relevant emails, court orders sanctions including payment to local bar association. |
Craig & Landreth Mazda v. Mazda Motor of America Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind July 27, 2009) | Data production in usable format not sufficient if native search capability lost. |
KCH Servs. Inc. v. Vanaire, Inc., 2009 U.S. Dist. LEXIS 62993 (W.D. Ky. July 22, 2009) | Court orders adverse inference for failure to preserve relevant evidence following notice that such evidence may have been relevant in future litigation. |
Ford Motor Co. v. United States, 2009 U.S. Dist. LEXIS 62318 | Producing overwritten e-mails would place undue burden on government. |
Goodman v. Praxair Servs., Inc., 2009 U.S. Dist. LEXIS 58263 (D. Md. July 7, 2009) | Court orders adverse inference for spoliation fo CEO’s data but finds no obligation to preserve relevant data of third party consultants. |
Arista Records LLC v. Usenet.com, 2009 U.S. Dist. LEXIS 55237 (S.D.N.Y. June 30, 2009) | Spoliation leads to severe sanctions. |
Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 U.S. Dist. LEXIS 51421 (E.D. Mich. June 17, 2009) | Magistrate Judge declines to compel plaintiff to categorically organize documents that were produced as kept in the usual course of business. |
Kravetz v. Paul Revere Life Insurance Co., 2009 U.S. Dist. LEXIS 51230 (D. Ariz. June 11, 2009) | Requesting party permitted to see only metadata and not substance of documents. |
Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009) | Court finds request overly broad and unduly burdensome. Court denies motion to compel but orders search of ESI. |
In re: Pharmaceutical Industry Average Wholesale Price Litigation, MDL No. 1456 (D. Mass. Filed June 4, 2009) | Department of Justice (DOJ) accused of “massive spoliation.” |
Kipperman v. Onex Corp., 2009U.S. Dist. LEXIS 44457 (N.D. Ga. May 27, 2009) | Textbook case of discovery abuse. |
Southeastern Mechanical Services Inc. v. v. Brody, No. 0:08-CV-1151-T-30EAJ (M.D. Fla. Filed April 14, 2009) | Three month delay unreasonable for motion to compel electronic discovery. |
Phillip M. Adams & Assoc., LLC v. Dell, Inc., 2009 WL 910801 (D. Utah Mar. 30, 2009) | Reliance on an employee's judgement on document retention results in finding of culpability for spoliation. |
Averett v. Honda of America Mfg. Inc., 2009 U.S. Dist. LEXIS 30179 (S.D. Ohio March 24, 2009) | Request for all files with ex-employees name too broad for discrimination claims. |
Heriot v. Byrne, 2009 WL 742769 (N.D. Ill. Mar. 20, 2009) | Court finds no waiver when vendor’s mistake results in inadvertent production. |
William Gross Const. Assoc. v. American Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. March 19, 2009) | Parties’ attorneys had to cooperate and carefully craft appropriate key words for non-party to use in searching e-mails. |
In re Fannie Mae Securities Litigation, 2009 U.S. App. LEXIS 9 (D.C. Cir. Jan. 6, 2009). | Agency found in contempt for providing “too little, too late.” |
J&M Associates Inc. v. National Union Fire Insurance Company of Pittsburgh, 2008 WL 5102246 (S.D.Cal.,2008 Dec. 2, 2008) | Access granted to opposing party’s e-mail servers in order to recover deleted e-mails. |
Zurn Pex Plumbing Products Liability Litigation, 2008 WL 5104173 (D.Minn. Nov. 26, 2008) | In a multi-district litigation regarding the manufacture of allegedly defective plumbing fittings the defendant was ordered to name a witness to be deposed on whether it preserved evidence dating back to its notice of likely litigation in 2004 and to identify the author of an e-mail who likened selling the fixtures to “playing Russian roulette.” |
Trackbacks D’Onofrio v. SFX Sports Group, Inc., 2008 WL 4737202 (D.D.C. Oct. 29, 2008) | Defendants' proposed search protocol was found to be "fundamentally misguided", “highly technical”, and “highly restrictive”. Court created its own protocol and ordered search of “any depository” that may contain the information sought. |
Ideal Aerosmith, Inc. v. Acutronic USA, Inc., 2008 WL 4693374 (W.D.Pa. Oct. 23, 2008) | Defendant sanctioned for failing to provide a 30(b)(6) witness where deponent failed to answer the most basic questions about its e-mail systems, other computer systems, and backup policies and procedures. |
Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008) | Court orders defendant to re-produce documents previously produced as TIFF images, setting out three format of production options. |
Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008) | Court orders party to explain how documents produced in digital format were ordinarily maintained. |
Dorn-Kerri v. South West Cancer Care, 2008 WL 3914458 (S.D. Cal. Aug. 18, 2008) | Court found Defendant met its discovery obligations by establishing that their standard operating procedures called for the destruction of aging reports and that the relevant documents had been destroyed by the time it could reasonably anticipate this litigation. |
In re Intel Corporation Microprocessor Antitrust Litigation, 2008 WL 2310288 (D.Del. June 4, 2008) | Waiver of attorney-client and work product protection for outside counsel interviews of over 1,000 electronic records custodians regarding ESI preservation problems. Interview summaries provided to plaintiff and court which deemed to have waived privilege. |
Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 U.S. Dist. LEXIS 42025 (D. Md. May 29, 2008). | Protection for 185 inadvertently disclosed documents waived when Defendants had not tested the reliability of their keyword search for protected documents before producing information identified by the search as non-privileged. |
Binary Semantics Ltd. v. Minitab, Inc., Case No. 07-1750 (M.D. Pa. May 5, 2008) | Judge limits hard drive imaging to relevant files only. |
Treppel v. Biovail Corp, 2008 WL 866594 (S.D.N.Y. April 2, 2008) | In-house counsel’s inadequate electronic record preservation justifies full forensic search of corporate founder’s laptop. |
United States v. O'Keefe, 2008 U.S. Dist. LEXIS 12220 (D.D.C. Feb. 18, 2008). | The sufficiency of search terms was "a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics." |
Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 2007 U.S. Dist. LEXIS 39605 (D.D.C. June 1, 2007). | Court ordered restoration and searches of defendant's backup tapes for failure to place a litigation hold on a program that automatically purged email every sixty days during the three years after the complaint was filed. |
Federal Government Resources
Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure | Proposed changes to F.R.C.P. 26 which would extend the work product protection. |
| A bill requiring federal agencies to preserve e-mails and other forms of electronic communication. | |
| 7th Circuit Program developed to confront the ongoing need for cooperation and discovery reform in light of the “rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”. | |
Instant Messages, E-Mail Subject to CFTC Recordkeeping Requirements | In guidance released Feb. 11, the Commodity Futures Trading Commission stated that its recordkeeping requirements “apply to records that are created or retained in an electronic format, including email, instant messages, and other forms of communication creathttp://10.10.15.121/javascripts/tiny_mce/themes/advanced/source_editor.htmed or transmitted electronically for all trading." |
State Resources
Walton v. Mid-Atlantic Spine Specialists, P.C., 2010 Va. LEXIS 63 (Va. June 10, 2010) | Supreme Court of Virginia sets a test for waiver of attorney-client privilege. |
Roffe v. Eagle Rock Energy GP, et al., C.A. No. 5258-VCL (Del. Ch. Apr. 8, 2010) | Self-Collection Prohibited in Delaware. |
New Castle County, DE - Complex Commercial Litigation Division | Complex commercial litigation division established which requires early consideration of e-discovery. |
| Regarding SaaS & duties of confidentiality & preservation. | |
New York - A Report to the Chief Judge and Chief Administrative Judge | Electronic Discovery in the New York Courts – A report recommending substantial changes to strengthen judicial management of electronic discovery to ensure that it is handled “as expertly, expeditiously and inexpensively as possible.” |
