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Threat of Destruction Justifying Third Party Preservation of ESI

By Josh Gilliland

Companies have a strong interest in making sure proprietary information does not go to competitors. Warning signs are employees who email confidential information to their personal accounts and then delete the sent email from their work email account. The following is one such case where third party email providers were ordered to preserve email created by the Defendants to avoid the destruction of relevant ESI.

United States District Judge Edward Davila addressed the duty to preserve in a case where two employees allegedly misappropriated confidential information. Parties [at the latest] have a duty to preserve evidence when a complaint is filed. OOO Brunswick Rail Mgmt. v. Sultanov, No. 5:17-cv-00017-EJD, 2017 U.S. Dist. LEXIS 2343, at *3 (N.D. Cal. Jan. 6, 2017), citing Echostar Satellite LLC v. Freetech, Inc., No. C-07-06124 JW, 2009 U.S. Dist. LEXIS 131412, at *2 (N.D. Cal. Jan. 22, 2009).

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Court Rules that Proportionality and Cooperation are Essential in Resolving E-Discovery Disputes

By Tony McGrath and Brett M. Anders

Magistrate Judge R. Steven Whalen agreed with UPS that it did not have to spend six months and $120,000 to recover data stored on backup tapes that may not be relevant to the case if UPS prevails in its efforts to limit the scope of the putative class’s claims.  Instead, the Court directed the parties to share information and agree upon an appropriate methodology for statistical sampling.

In Solo v. United Parcel Services Co., No. 14-12719, 2017 U.S. Dist. LEXIS ______ (E.D. Mich. January 10, 2017) a putative class of shipping customers alleged that UPS breached its shipping contracts by repeatedly overcharging for shipments with a declared value of more than $300.  Plaintiffs made what they likely believed to be a reasonable request – how many packages with a declared value of more than $300 were shipped within the several years covered by Plaintiffs’ claims?

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