United States: Electronic Discovery In Federal Court: Top 10 Cases From 2009

The electronic discovery-related amendments to the Federal Rules of Civil Procedure have now been in place for over three years, and 2009 brought many significant court opinions applying and interpreting the rules. Below are 10 of the most significant cases from the past year, several of which involved courts criticizing (and sometimes sanctioning) parties and counsel for not handling electronic discovery properly under the spirit and letter of the Federal Rules.

Duty to Preserve Electronically Stored Information ("ESI")

KCH Servs., Inc. v. Vanaire, Inc., No. 05-777-C, 2009 WL 2216601 (W.D. Ky. July 22, 2009) (Judge Coffman).

Plaintiff brought a motion for sanctions for defendants' spoliation of ESI. A month before filing the complaint, plaintiff's president telephoned defendant Vanegas, an official at defendant Vanaire, Inc., to inform Vanegas that Vanaire, Inc. was illegally using plaintiff's software. Following the call, Vanegas instructed Vanaire employees to delete from Vanaire's computers any software Vanaire did not purchase or own. The court found that plaintiff's phone call to Vanegas "should have put the defendants on notice that issues of software may be relevant to future litigation" and therefore defendants should not have deleted the software. Moreover, plaintiff sent defendants a preservation letter following the phone call that provided defendants notice that email and other ESI "were relevant to litigation." Nevertheless, defendants failed to preserve email and other ESI "by continuing to delete and overwrite, even after receipt of a preservation letter." The court found that the "defendants' conduct in regard to electronically stored evidence falls beyond the scope of 'routine, good faith operation of an electronic information system'" under the FRCP 37(e) safe harbor and ordered that an adverse inference instruction be read to the jury to "compensate the plaintiff for lost evidence that may have been presented to the jury."

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Source: mondaq.com
By: Amy Longo & Allan Johnson