Many times have we alluded to the importance of e-discovery in litigation and legal proceedings. In getting down to brass tacks, it’s important to realize that the discoverability of sensitive documents, emails, and other files (and the contents of these items) can make or break your court case. Failure to meet discovery requests as a result of negligence or unpreparedness is not defensible. In today’s post, we’ll take a look at two different e-discovery cases from the past few years. We’ll look not only at their outcomes, but also the significance of each outcome.

E-discovery cases in court.

E-Discovery Cases: Outcomes & Significance

Although we’re looking briefly at just two cases, we’ll keep them in chronological order, starting with the earliest and ending with the most recent. Remember: Outcome is important, but significance concerns future implications in similar cases.

Case 1:

Keithley v., 2008 WL 3833384 (N.D. Cal. August 12, 2008)

In this case, the plaintiffs brought forth three spoliation charges against the defendants. They argued that the defendants had destroyed “source code,” “early architectural, design and implementation documents,” and “reports” – spoliation that created a problem for the plaintiffs when they sought to prove patent infringement.

Outcome: The magistrate judge labeled the defendants’ actions as “reckless and egregious discovery misconduct.” These actions included misrepresentations to the plaintiffs, “material misstatements,” the absence of a litigation hold policy, some spoliation, and more. In the end, the plaintiffs were awarded monetary sanctions representing the past and future expenses incurred as a result of the defendants’ misconduct.

Significance: The significance here is that, in e-discovery cases, “good faith” is not simply the absence of “bad faith.” While there was little evidence to suggest egregious spoliation, there was plenty enough to prove that the defendants had not acted honestly, and had misrepresented realities to the plaintiffs. Also, with regards to the reckless destruction of source code, ignorance is not a viable excuse. Had the correct policies been in place, said destruction would have never occurred.

Read more about this case here.

Case 2:

Scooter Store, Inc. v., LLC, 2011 WL 2160462 (S.D. Ohio June 1, 2011)

In this case, the Scooter Store and another plaintiff sued for trademark infringement and unfair competition. This suit was brought forth much in part due to the defendants’ purchase of online advertising keywords that included “scooter store.” The defendant motioned for a protective order that would allow it to retain the electronic information that pertained to its purchase of “scooter store” keywords.

Outcome: While the defendant’s argument was that, due to the generic nature of the terms that included “scooter store,” they should not have to provide the information requested, the judge denied the protective order. The judge ruled that – no matter the judgment on the legal use of the terms – the discovery request was perfectly relevant. Thus, the defendant’s request for a protective order was denied.

Significance: The significance of the judge’s ruling in this case is that the eventual case judgment has no bearing on whether or not an e-discovery request needs to be met. Instead, it is the relevance of said request to the case that matters. In this case, the request of the keyword information was perfectly relevant to the plaintiffs’ charge on the defendant.

Read more about this case here.


As we’ve observed in looking at these two cases, there’s a lot to learn about the e-discovery process. What’s more is that it pays to be prepared. In the last case, for instance, the defendant may have been completely within their rights to use the keywords mentioned. However, if they couldn’t provide the information requested, they may have been held accountable. Accountability is everything.

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