In Lake v. City of Phoenix, et. al., 2009 Ariz. LEXIS 257 (S. Ct. Ariz. Oct. 29, 2009), the Arizona Supreme Court vacated the a court of appeals ruling and held that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under public records laws.

In MRT, Inc., et. al. v. Vounckx, et. al., 2009 Tex. App. LEXIS (Ct. App. Tex. Dallas Oct. 30, 2009), Judge Joseph B. Morris writing for the majority upheld the trial court's ruling and rejected plaintiffs' requested spoliation instruction based on defendant IMEC's destruction of back-up tapes during litigation.

In In re Washington Mutual, Inc. Securities Litigation, 2009 U.S. Dist. LEXIS 99727 (W.D. Wash. Oct. 27, 2009), U.S. District Court Judge Marsha J. Pechman barred portions of plaintiffs' expert opinions on spoliation of electronically stored information holding that to permit such testimony would run afoul of her earlier ruling precluding plaintiffs from inferring that defendants destroyed or lost ESI unless and until it brought forth non-speculative admissible evidence to support such an inference.

In United States v. Afremov, et. al., 2008 U.S. Dist. LEXIS 110102, Aug. 14, 2008, U.S. Magistrate Judge Susan Nelson granted movant Computer Forensic Services' motion to quash subpoenas and ordered defendant to pay more than $625,000 in costs associated with complying with the subpoena.

In Scalera v. Electrograph Systems, Inc., et. al., 2009 U.S. Dist. LEXIS 91572 (E.D.N.Y. Sept. 29, 2009) U.S. Magistrate Judge A. Kathleen Tomlinson denied plaintiff's request for sanctions holding that while defendant negligently failed to preserve electronically stored information, the information destroyed was likely irrelevant to the litigation.

In Transcap Assoc., Inc. v. Euler Hermes American Credit Indemnity Co., et. al., 2009 U.S. Dist. LEXIS 94264 (N.D. Ill. Oct. 9, 2009), U.S. Magistrate Judge Michael T. Mason granted, in part, plaintiff's motion to compel and motion for sanctions for defendant's failure to identify potentially responsive documents, including electronically stored information.

On September 24, 2009, the Supreme Court of Arkansas amended the Arkansas Rules of Civil Procedure by adding Rule 26.1 to address electronic discovery.  The Rule is similar to the e-discovery amendments to the Federal Rules of Civil Procedure.  However, unlike the FRCP, the Arkansas rule is mandatory, but requires agreement between the parties to pursue electronic discovery or a court's order on a motion for good cause shown.  For a copy of Arkansas Rule 26.1, click here.

In The Pension Committee of the University of Montreal Pension Plan, et. al. v. Banc of America Securities, LLC, et. al., 2009 WL 2921302 (S.D.N.Y. Sept. 8, 2009), U.S. District Court Judge Shira A. Scheindlin ruled that certain exhibits filed by plaintiffs in camera in opposition to a motion for spoliation sanctions were privileged, but nonetheless must be produced to the defendants with limited redaction to afford defendants the opportunity to respond.

In United States v. Board of County Commissioners of the County of Dona Ana, New Mexico, 2009 U.S. Dist. LEXIS 65540 (D.N.M. July 27, 2009), U.S. District Court Judge James O. Browning overruled the defendant's objections to producing electronic data. 

In Pinstripe, Inc. v. Manpower, Inc., et. al., 2009 U.S. Dist. LEXIS 66422 (N.D. Okla. July 28, 2009), U.S. Magistrate Judge Paul J. Cleary sanctioned defendants for failure to preserve relevant e-mails but declined to "punish" defendant's law firm for defendant's spoliation.