by Sidley Austin LLP
This update addresses the following recent developments and court decisions involving e-discovery issues:
1. A District of Kansas decision finding that Kansas does not recognize an independent tort for intentional spoliation of evidence, absent an independent duty to preserve evidence arising from a contract, voluntary assumption of duty, or some special relationship;
2. A District of Maryland decision holding plaintiff and its counsel jointly and severally liable for defendant’s fees and costs for making an inaccurate discovery certification under Fed. R. Civ. P. 26(g) and for failing to provide responsive electronically stored information (“ESI”) in an appropriate format for production; and
3. A Northern District of California case deciding that information regarding emails containing certain search terms, as well as email subject lines, are protected “content” under the Stored Communications Act and not subject to production by email providers.