Backup Media Recycling – Page 6 – Electronic Discovery Law

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

Hare v. Opryland Hospitality, LLC, 2010 WL 3719915 (D. Md. Sept. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s alleged destruction of ?full and complete surveillance video? of the relevant incident but failed to establish that defendant had the burden to preserve any video aside from the portion produced or that any other relevant footage existed and was deleted and where plaintiff failed to establish the ?requisite state of mind?, the court denied plaintiff?s motion for sanctions

Nature of Case: Personal Injury

Electronic Data Involved: Video surveillance footage

Herbert v. Baker, 2010 WL 5330050 (E.D. Mich. Dec. 21, 2010)

Dec 01 2010

Key Insight: District court reversed the order of the Magistrate Judge compelling production of certain videotape where defendant presented evidence that the video in question was not responsive to plaintiff?s narrow request; court denied sanctions where different and relevant video was automatically overwritten before the lawsuit was initiated, where plaintiff presented no evidence of defendant?s notice of litigation, and where the lost video was not the only evidence to support plaintiff?s position

Nature of Case: Claims arising from police department’s alleged failure to prevent an intoxicated person from driving which resulted in death

Electronic Data Involved: Video surveillance footage

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

State v. Dewitt, 2010 WL 5550243 (Ohio App. Ct. Dec. 29, 2010)

Dec 01 2010

Key Insight: Court overruled defendant?s assignment of error and found no violation of defendant?s due process rights resulting from the loss of a portion of the video surveillance footage of his traffic stop where defendant presented no evidence of bad faith in the destruction or loss, where defendant failed to seek a preservation order to prevent its destruction, and where defendant offered only speculation as to the exculpatory nature of the missing portions of video

Nature of Case: Criminal

Electronic Data Involved: Surveillance footage

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

Dec 01 2009

Key Insight: Court found emails ?not reasonably accessible? in light of representations of undue burden, including the need for vendor assistance to accomplish the necessary searching, and, upon shifting the burden to defendant to show ?good cause? for the additional emails sought, ordered some specific searching using specific terms and for the parties to confer to identify additional custodians

Nature of Case: Copyright infringement

Electronic Data Involved: Emails, ESI

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Tag:Backup Media Recycling