In Ferron v. Echostar Satellite, LLC, 2009 U.S. Dist. LEXIS 66637 (S.D. Ohio July 30, 2009), U.S. Magistrate Judge Norah McCann King denied plaintiff's renewed motion for the imposition of discovery sanctions for defendants' failure to preserve embedded images and web links.

In In re: Direct Southwest, Inc., Fair Labor Standards Act Litigation, 2009 U.S. Dist. LEXIS (E.D. Louis. Aug. 7, 2009), U.S. Magistrate Judge Sally Shushan denied defendants' motion for reconsideration for a protective order regarding plaintiffs' discovery requests for electronically stored information.

In Brown v. M.D. Sydney Coleman, et. al., 2009 U.S. Dist. LEXIS 82302 (S.D.N.Y. Sept. 9, 2009) U.S. Magistrate Judge Ronald L. Ellis denied defendants' request for certain records relating to plaintiff's expert witness's experience with a particular procedure because of the burden and expense of searching for them in the expert's "antiquated computer system."  However, the court ruled the expert was precluded from providing any testimony regarding the number of similar procedures he had performed due to his spoliation of surgical logs containing the information two weeks after the court ordered their production.

In United States v. Sensient Colors, Inc., 2009 U.S. Dist. LEXIS 81951 (D.N.J. Sept. 9, 2009), U.S. Magistrate Judge Joel Schneider held that the attorney-client privilege and work-product protections were not waived as to the first set of documents inadvertently produced by plaintiff.  However, the privilege and protections were waived as to all subsequent inadvertently produced documents because plaintiff failed to take timely and appropriate steps to rectify the error as required by FRE 502(b)(3).

On August 24, 2009, the Department of Justice Computer Crime and Intellectual Property Section, Criminal Division released an updated version of "Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations."  Click here for a copy.

In Lips, et. al.  v. Scottsdale Healthcare Corp., 1 CA-CV-08-0097 (AZ Ct. of Appeals, Div. 1, Dept. B, Aug. 25, 2009) Appellate Court Judge Jon W. Thompson writing for the majority affirmed the trial court's order dismissing plaintiffs' claims for intentional and negligent spoliation of evidence against Scottsdale Healthcare Corporation ("SHC").

In Bray & Gillespie Management, LLC., et. al. v. Lexington Insurance Company, 2009 WL 2407754 (M.D. Fla. Aug. 3, 2009), U.S. Magistrate Judge Karla Spaulding granted defendants' motion for terminating sanctions against plaintiff ruling that plaintiff Bray & Gillespie Management LLC ("B&G") and its counsel were "serial violators" of the FRCP and the Court's orders to make reasonable efforts to search for responsive documents.

In Arista Records, LLC v. Usenet, Inc., 2009 WL 1873589 (S.D.N.Y. June 30, 2009), District Court Judge Harold Baer granted plaintiffs' motions for terminating sanctions for spoliation of evidence and discovery misconduct.

In Capitol Records, Inc., et. al. v. MP3 Tunes, LLC, 2009 U.S. Dist. LEXIS 73447 (S.D.N.Y. Aug. 13, 2009), U.S. Magistrate Judge Frank Maas limited the production of active emails deemed not reasonably accessible due to undue cost or burden and cautioned both parties to be mindful of their responsibility to meaningfully meet and confer.

In Bellinger v. Astrue, 2009 U.S. Dist. LEXIS 71727 (S.D.N.Y. Aug. 14, 2009), U.S. Magistrate Judge Steven Gold denied plaintiff's request for additional discovery finding the burden and expense of further discovery outweighed its potential benefit.