Tagged: ESI

A decision earlier this year from the Northern District of Indiana illustrates the importance of counsel thoroughly investigating and understanding all data sources their clients may be using to create and store potentially relevant Electronically Stored Information (ESI). With the increased use of messaging applications – including ephemeral ones – counsel must understand the intricacies of each application (and its retention and preservation policies) used by their clients to prevent the destruction of relevant ESI. In this case involving civil rights claims, the defendants sought evidence regarding the plaintiff’s activities and character to disprove claims that the defendants deprived the plaintiff of his honor and reputation – a “protected liberty interest” – without due process. Through one of their requests, the defendants sought all data related to the plaintiff’s Snapchat account. For background, Snapchat is a messaging service where users record photos and videos (called “Snaps”) to send to other users. These Snaps appear on the receiver’s screen only for a limited period of time (generally, seconds). In addition, Snapchat users can send chat messages to other users, create “Stories” that remain visible to all users for 24 hours, and save Snaps indefinitely by storing them in the user’s “Memories.” Data within the user’s “Memories” is saved by Snapchat until a user deletes it, at...

In a recently filed motion in the United States District Court for the Northern District of California, plaintiffs Facebook, Inc. and Instagram, LLC (collectively, “the plaintiffs”) requested terminating sanctions pursuant to Federal Rule of Civil Procedure 37 in a trademark infringement and cybersquatting litigation against a domain registrar, based on the registrar’s destruction of over 11 million records. The motion relies heavily on a Special Master’s detailed report, which outlines egregious discovery abuses, including “ample evidence that Defendants failed to preserve responsive ESI, deleted ESI and withheld ESI.” In the motion, the plaintiffs requested a default judgment in the amount of $3.5 million ($100,000 for each of the 35 infringing domain names registered by defendant ID Shield), attorneys’ fees in the amount of $2,057,782.17, costs of the action, costs of the Special Master in the amount of $88,937, and a permanent injunction. As background, the plaintiffs sued the defendants for cybersquatting pursuant to the Anti-Cybersquatting Consumer Protection Act, trademark infringement, false designation of origin, and dilution. Numerous discovery disputes arose in the litigation, including motion practice after the defendants: (1) failed to produce documents with proper metadata; (2) designated public documents as “confidential”; and (3) did not deduplicate hundreds of thousands of pages of documents. The plaintiffs subsequently requested the appointment of a Special Master...

A recent decision out of the Southern District of New York once again illustrates the risk of sanctions under several sections of Fed. R. Civ. P. (“Rule”) 37 for spoliation of evidence and discovery misconduct, as well as the high burden a party must satisfy when seeking sanctions under Rule 37(e)(2). In Bursztein v. Best Buy Stores, L.P., despite finding that defendant flouted discovery obligations, failed to communicate promptly with its adversary, and raised baseless objections throughout discovery, the Court declined to impose sanctions under Rule 37(e)(2), though it did award sanctions – both monetary and in the form of evidence submission to the jury – under Rule 37(e)(1).