Key Insight: Without using FRCP 37(e), bad faith is still an importance factor for spoliation
Nature of Case: Failure to provide medical care (deliberate indifference)
Electronic Data Involved: Video footage
Keywords: deliberate indifference, spoliation sanctions
Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.
Nature of Case: Death by negligence and deliberate indifference
Electronic Data Involved: surveillance camera footage
Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation
Arrowhead Capital Fin., Ltd. v. Seven Arts Entm’t, Inc., No. 14 Civ. 6512 (KPF), 2016 WL 4991623 (S.D.N.Y. Sept. 16, 2016)
For Defendants’ egregious discovery conduct, including obstructing depositions and failing to preserve and produce relevant documents, among other things, the Court imposed sanctions, including precluding them from litigating the issue of personal jurisdiction; imposing a “spoliation instruction, as appropriate, on any claims that are ultimately submitted to the jury”; ordering payment of Plaintiff’s attorneys fees related to the misconduct; and ordering the retention of a second outside counsel to review their files for additional discoverable materials and to represent them in future discovery-related proceedings. Defendants’ manager and sometimes CEO was also found in contempt for his behavior throughout discovery, including attempting to minimize his own responsibility for the discovery deficiencies by claiming limited involvement and blaming others. Finally, for acting in bad faith in a manner that improperly lengthened the proceedings and for making objections in bad faith, the Court also imposed “modest” sanctions against defense counsel.
Key Insight: failure to review backup tapes, attorney’s fees
Nature of Case: contract dispute
Electronic Data Involved: email, backup tapes
Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy
Key Insight: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA
Nature of Case: antitrust
Electronic Data Involved: deleted electronic records
Keywords: duty of preservation foreign, foreign government investigation preserve
Key Insight: FRCP 37(e) not used, discretionary powers used instead. Litigation after a police shooting should be anticipated. Failures all around with the destruction of evidence lead to an adverse inference.
Nature of Case: Wrongful death (excessive police force)
Electronic Data Involved: Audio recordings
Keywords: excessive force, marijuana, knife, child protective services, metadata, shell game
Key Insight: No spoliation because employees were merely unaware/untrained on surveillance system and didn’t intentionally withhold evidence
Nature of Case: wrongful death, slip and fall
Electronic Data Involved: video surveillance
Keywords: Rule 37 ignored, no culpable state of mind, unaware of surveillance
Key Insight: Although the deletion was intentional, the plaintiff was not unduly prejudiced, as there is sufficient other evidence. Therefore, not sanctions other than attorney’s fees for the motion.
Nature of Case: Contract
Electronic Data Involved: email
Keywords: Spoliation sanction, prejudice, intentional
Key Insight: Spoliation
Nature of Case: Plea Agreement – Conspiracy, Obstruction of Justice, Entry of Goods by False Statement
Electronic Data Involved: USB drives, hard drives
Keywords: instruction to destroy documents, late notice of DOJ litigation hold, failure to preserve backup disks, instruction to store documents on removable media rather than network drives
Key Insight: proportionality
Nature of Case: class action
Electronic Data Involved: backup tapes
Keywords: undue burden, statistical sampling, restoration, reasonably accessible, cooperation, interrogatory, relevance
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