Key Insight: Spoliation sanctions for failing to preserve the webpages in which the images were published.
Nature of Case: Intellectual Property infringement
Electronic Data Involved: Images, Webpages
Key Insight: Where Defendant?s use of an internal utility tool on the at-issue server resulted in all of the data thereon being overwritten but where the District Court Judge found ?credible? Defendant?s explanations that he did not believe the hard drives contained relevant information and where the ?unique facts? of the case, namely the focus on Defendant?s TOR Node – which ?routed information for other end users around the world? but did not contain Defendant?s personal data – contributed to the court?s disagreement with the Magistrate Judge?s finding of intent, the court adopted the Magistrate Judge?s finding of spoliation but declined to impose default judgement and instead concluded that an adverse inference was appropriate
Nature of Case: Copyright infringement
Electronic Data Involved: ESI
Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.
Nature of Case: Employment litigation, unpaid overtime
Electronic Data Involved: Text messages
Key Insight: Applying the common law, the court imposed a permissive adverse inference and monetary sanctions for Plaintiff?s spoliation of his cellular phone and its contents where Plaintiff claimed a day before he was scheduled to produce it that he had lost his phone months ago but provided no details regarding the loss or his attempts at preservation or recovery of the phone and where the court concluded that Plaintiff made a ?deliberate choice to withhold [the phone] from production? and that Defendants were prejudiced as a result
Nature of Case: Insurance coverage litigation
Electronic Data Involved: Cellular phone and contents
Key Insight: In this insurance litigation, the district court affirmed an order of the magistrate judge requiring Defendant?s counsel to provide additional information regarding the fate of relevant photographs but, upon review of the declaration submitted, found that it did not adequately address the loss and ordered that a representative of Defendant?s IT personnel be deposed; in concluding that a duty to preserve existed prior to Defendant?s ?final? determination regarding the claim, court reasoned in part that Defendant had asserted attorney client privilege with its outside counsel re: ?coverage issues? prior to its final determination and also noted its decision to require Plaintiff to testify under oath, indicating its skepticism of Plaintiff?s claim, and Defendant?s own request for Plaintiff to submit additional evidence, including any pictures
Nature of Case: Insurance litigation
Electronic Data Involved: Photographs
Key Insight: Where Plaintiff in an employment litigation failed to preserve a potentially relevant Facebook post, deleted her work phone before returning it and failed to preserve information contained on numerous other phones (e.g., because they were lost, etc.), court found that ?Plaintiff cannot be relied on to disclose all relevant communications? and granted motion to allow access to the mirror image of a phone belonging to a former employee and co-worker of the plaintiff and to allow defendant to subpoena the former employee to produce a second phone for inspection and ordered production of Plaintiff?s current work phone, to be reviewed by a Special Master for potentially relevant communications, with the cost of the Special Master to be split between the parties ; court found request for dismissal or an adverse inference was premature
Nature of Case: Employment litigation
Electronic Data Involved: ESI from cellular phones, Facebook
Key Insight: In response to Plaintiff?s Motion for Spoliation Sanctions, the Court engaged in an analysis of four types of available sanctions: Evidentiary, Monetary, Dispositive and Adverse Inference Instructions. The Plaintiff argued the Defendant intentionally destroyed evidence in the form of an incident report, a surveillance video and correspondence between Defendant and a third-party claims adjuster. The Court found that information from the incident report and the lost emails with the claims adjuster were available elsewhere and that the loss of the video surveillance was due to a system-wide outage that affected several stores. The Court found no evidence that Defendant acted intentionally or recklessly and denied Plaintiff?s request for Dispositive Sanctions but instead imposed lesser Evidentiary Sanctions by allowing the Plaintiff to introduce evidence that the incident report was lost or destroyed, that the Defendant failed to preserve the third-party communications and that Defendant?s video system failed to record the incident.
Nature of Case: Slip and Fall
Electronic Data Involved: ESI, including video
Key Insight: Where Plaintiff sought sanctions for a government agency?s failure to preserve and produce emails in response to a Touhy request (an APA action was eventually filed), court denied Plaintiff?s request to depose the Agency?s attorneys as a way to ?replace? the lost information (thus, according to Plaintiff, avoiding further analysis under Rule 37(e)), reasoning that the rule?s Committee Notes appeared to ?contemplate that the ?replacement? of lost information would come from another electronic source,? and declined to impose the requested sanction under any authority (either Rule 37(e) or the court?s inherent authority) where Plaintiff?s requested sanction was not appropriately targeted to the harm claimed and where no prejudice was established
Nature of Case: APA Action related to Touhy request
Electronic Data Involved: Email
Key Insight: In US litigation, court found no duty to preserve was triggered by Korean Fair Trade Commission?s investigation of price-fixing in Korean markets absent case law establishing such a possibility (i.e., that a foreign investigation of domestic markets could trigger a duty to preserve in the US because litigation could someday be commenced) or any related complaints or lawsuits filed in the US or evidence that the price fixing conspiracy was directed at the US or that the KFTC?s investigation extended to impacts in the United States
Nature of Case: Antitrust
Electronic Data Involved: ESI
Key Insight: Court denied motion for spoliation sanctions where Defendants ?failed to clear the threshold issue of showing that relevant evidence was lost or destroyed? or, in the case of the alleged spoliation of ESI of one former employee, where defendants failed to show that the emails could not be replaced through additional discovery in light of the production of some of the employee?s emails from other computers
Electronic Data Involved: ESI
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