Data Preservation – Page 102 – Electronic Discovery Law

Nutrition Mgmt. v. Harborside Healthcare Corp., 2004 WL 887401 (E.D. Pa. Mar. 19, 2004)

Dec 01 2004

Key Insight: Court denied plaintiff’s motion in limine to preclude testimony, which was based on speculation that email had been destroyed, since defendants produced sworn testimony that all relevant emails were produced, and legitimate reason for erasing some emails “was simply a function of cleaning the junk mail and other clutter from the computer software and disk storage space”

Nature of Case: Breach of contract and tort claims

Electronic Data Involved: Email

Sheppard v. River Valley Fitness One, LP, 203 F.R.D. 56 (D.N.H. 2001)

Dec 01 2004

Key Insight: Defense counsel’s failure to produce computer records and to retain all drafts of settlement documents reflected lack of diligence rather than intentional effort to abuse discovery process; testimony of witness barred and $500 awarded as sanctions

Nature of Case: Sexual harassment

Electronic Data Involved: Computer records

Ferrari v. Gisch, 225 F.R.D. 599 (C.D. Cal. 2004)

Dec 01 2004

Key Insight: Where statute specifically imposed a duty on defendants to preserve evidence, and defendants represented they had complied and will comply with the statute, and plaintiffs adduced no evidence of non-compliance, court declined to enter an order mandating the preservation of evidence

Nature of Case: Securities fraud class action

Electronic Data Involved: All relevant documents, data compilations and tangible things

Aero Products Int’l, Inc. v. Intex Recreation Corp., 2004 WL 417193 (N.D. Ill. Jan. 30, 2004)

Dec 01 2004

Key Insight: Motion for sanctions for destruction of email denied since plaintiff failed to follow procedure set forth in court’s prior order which would have required plaintiff to file a petition seeking the appointment of a computer forensics expert, and instead waited over seven months to bring the issue to the court in the form of a motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Deleted email

Hypro, LLC v. Reser, 2004 WL 2905321 (D. Minn. Dec. 10, 2004)

Dec 01 2004

Key Insight: In light of defendant’s previous attempt to delete incriminating email and documents from his company laptop, court entered order requiring all parties to preserve and protect evidence

Nature of Case: Misappropriation of corporate opportunity and related claims

Electronic Data Involved: Electronic documents and mail

Oved & Assocs. Const. Servs., Inc. v. Superior Court, 2003 WL 23028903 (Cal. App. Dec. 30, 2003) (Unpublished)

Dec 01 2004

Key Insight: Petition for writ of mandate denied; based on evidence that a business computer was used for accounting and nothing else, and that there was a risk the hard drive might be purged, trial court acted properly when it ordered the petitioner to produce the computer’s hard drive

Nature of Case: Misappropriation of funds

Electronic Data Involved: Hard drive

Smith v. Texaco Inc., 951 F. Supp. 109 (E.D. Tex. 1997)

Dec 01 2004

Key Insight: Defendant’s motion to dissolve TRO requiring preservation of documents and electronic data denied, however, “to mitigate the high costs associated with electronic document storage, the court will permit defendants to delete electronic records in the ordinary and usual course of business; provided, however, that hard copy records be made and kept of any and all [relevant] electronic records . . .”

Nature of Case: Race discrimination

Electronic Data Involved: Unspecified human resources records, payroll records

Anderson v. Crossroads Capital Partners, LLC, 2004 WL 256512 (D. Minn. Feb. 10, 2004)

Dec 01 2004

Key Insight: Plaintiff’s use of Cyberscrub data wiping software prior to court-ordered inspection of her computer and after agreeing on the record that she would not purge her hard drive or delete any documents, and her misrepresentations about age of hard drive, were not sufficiently egregious to warrant dismissal but did warrant an adverse inference instruction

Nature of Case: Sexual harassment and whistleblower claims by former employee

Electronic Data Involved: Hard drive of plaintiff’s personal computer

Ill. Tool Works, Inc. v. Metro Mark Prods., Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999)

Dec 01 2004

Key Insight: Defendant’s failure to preserve integrity of computer (dropping it repeatedly and apparent tampering, including disconnecting internal cables prior to court-ordered inspection) and failure to produce responsive electronic material warranted monetary sanctions

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Hard drive, deleted files, electronically stored invoices

Pennar Software Corp. v. Fortune 500 Sys., Ltd., 51 Fed. R. Serv. 3d 279, 2001 WL 1319162 (N.D. Cal. Oct. 25, 2001)

Dec 01 2004

Key Insight: Defendant’s discovery abuses and deletion of web site pages and other electronic information warranted entry of order enjoining spoliation and imposing monetary sanctions against defendant

Nature of Case: Breach of contract and related claims

Electronic Data Involved: Web site pages; log files and backup tapes of nonparty web hosting company

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