Author - eDiscovery Import

Key Insight: Where defendants asserted they received only a “handful” of emails and argued that plaintiffs destroyed or otherwise failed to preserve relevant emails, court denied defendants’ motion for spoliation sanctions, finding that defendants failed to prove that the subject emails ever actually existed; court further rejected defense argument that missing emails were relevant to their counterclaim, observing that, to the extent the counterclaim sought payment for ?extras? performed by defendants, defendants presumably had their own records to support the counterclaim and did not need to rely on emails exchanged between plaintiffs and their architect, therefore even if spoliation did take place, the defendants were not prejudiced thereby

Nature of Case: Claims for breach of contract, fraudulent misrepresentation, unjust enrichment and conversion arising from residential construction

Electronic Data Involved: Email

Key Insight: Where there was no evidence that plaintiff ever instituted litigation hold, and documents were either discarded during plaintiff?s office move or lost due to server failure and/or corruption, court found that a fair reading of the record overall indicated that plaintiff?s failure to preserve was at most negligent and not in bad faith, and that no sanctions were warranted given that the alleged relevance of the missing documents appeared purely speculative and conclusory

Nature of Case: Breach of legal services agreement

Electronic Data Involved: Documents concerning plaintiff’s liabilities and financial condition

Key Insight: Where hotel’s security system recorded elevator area before, during and after plaintiff’s fall, but hotel produced only seven minutes of footage, which began about one minute before the accident and ended before plaintiff was removed from the ground and placed into a wheelchair, and hotel offered no sworn facts concerning the circumstances under which the footage was destroyed, court found hotel was grossly negligent at minimum and concluded that permissive adverse inference instruction was appropriate and sufficient to deter hotel from similar future conduct and restore plaintiff’s position in the litigation

Nature of Case: Slip and fall

Electronic Data Involved: Security camera footage of area before, during and after plaintiff’s fall

Key Insight: Court ordered spoliation sanctions for Plaintiff?s intentional destruction of materials related to his claim of copyright infringement at a time when he had a duty to preserve as evidenced by his actions to ?preserve? his work with the copyright office before the release of the allegedly infringing film (Kung Fu Panda) and his consultation with counsel; sanctions excluded evidence of Plaintiff?s 2008 copyright registration which was created with and relied upon evidence that had been destroyed

Nature of Case: Copyright Infringement

Electronic Data Involved: Hard copy documents, computer equipment and contents

Key Insight: Court imposed spoliation sanctions, including an adverse inference, for defendant?s deletion of a ?software library? despite a duty to preserve

Nature of Case: Copyright infringement

Electronic Data Involved: Software library