Key Insight: sanctions requested for failure to preserve video footage
Nature of Case: civil rights case
Electronic Data Involved: cellphone video footage
Keywords: spoliation, prejudice
Key Insight: Measures to cure prejudice should be no greater than necessary, but if a party acts with intent to deprive, the court may presume unfavorability, issue an adverse inference, or dismiss and enter a default. You must raise your spoliation motions before summary judgment is ruled on.
Nature of Case: Unlawful termination
Electronic Data Involved: relevant electronic communications and documents
Keywords: prejudice, spoliation, intent to deprive, adverse influence
Key Insight: Interrogatories asking for evidence proving or disproving engagement in interstate commerce are improper due to requesting conclusions of law.
Nature of Case: fair labor standards act violations
Keywords: interstate commerce
Key Insight: ordered to produce original emails between parties with metadata not versions forwarded to law office
Nature of Case: breach of contract
Electronic Data Involved: emails and metadata
Keywords: farm sale, email metadata
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)
In this case, Plaintiff was sanctioned pursuant to Rule 37(e), as amended on December 1, 2015, for its failure to preserve relevant customer call recordings.
Plaintiff alleged that Defendant had “illegally ‘poached’” its customers and defamed the plaintiff. Defendant, in turn, alleged tortious interference with its contractual relationships and defamation by the plaintiff. In the course of discovery, Plaintiff produced approximately 150 customer call recordings (out of “thousands”) that were “generally favorable” to it but, when asked, was unable to produce any others and claimed that the recordings were lost, apparently as the result of the “normal operation of a data retention policy.” Defendant sought sanctions pursuant to amended Rule 37(e).
Key Insight: whether billing temporary contract attorneys at the firm’s standard rates is excessive to award attorney fees
Nature of Case: Securities action
Electronic Data Involved: n/a
Keywords: attorney fees, lodestar, temporary associates
Key Insight: Defendants request for social media posts was too broad and needed to be even more specifically directed to claims in case.
Nature of Case: personal injury
Electronic Data Involved: Social Media Posts
Keywords: social media; scope
Cahill v. Dart, No. 13-cv-361, 2016 WL 7034139 (N.D. Ill. Dec. 2, 2016)
Following Plaintiff’s arrest for driving on a suspended license, an officer claimed he observed Plaintiff dropping a small package of cocaine while at a “County lockup” and charged him with felony possession. Although defense counsel acted quickly to ensure preservation of surveillance video that Plaintiff believed would prove his innocence (because he claimed that he did not drop the package), only a portion of the video—which began after the package was on the floor—was available. After the charges were eventually dismissed, Plaintiff brought the present lawsuit and moved for sanctions. The magistrate judge found that the failure to preserve was grossly negligent and caused substantial prejudice and recommended that Defendants be barred from making arguments or presenting evidence that the lost portion of the tape showed Plaintiff dropping the cocaine, but would allow testimony from one officer that he saw it happen. Plaintiff objected. Thereafter, the District Court adopted the recommendations of the magistrate judge, with modifications, concluding that the jury should be informed that the video was missing because of Defendants’ failure to fulfill their duty to preserve. The court also ordered that Plaintiff would be allowed to argue that the destruction was intentional and that the jury would be instructed that IF they agreed, they must presume that the lost evidence was unfavorable to the defendants.
Key Insight: what sanction for failure to preserve evidence
Nature of Case: false arrest and malicious prosecution
Electronic Data Involved: digital video
Keywords: adverse inference, intent
Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?
Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.
Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI
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