Key Insight: defendants took no steps to save a copy of the footage, and it was overwritten after 30 days elapsed.
Nature of Case: Death by negligence and deliberate indifference
Electronic Data Involved: surveillance camera footage
Keywords: surveillance camera footage, defendant sheriff, anticipation of litigation
Key Insight: Duty of preservation is not enforceable for foreign company investigated by foreign government with no lawsuits filed in USA
Nature of Case: antitrust
Electronic Data Involved: deleted electronic records
Keywords: duty of preservation foreign, foreign government investigation preserve
Key Insight: failure to review backup tapes, attorney’s fees
Nature of Case: contract dispute
Electronic Data Involved: email, backup tapes
Keywords: destruction of laptop, key employee, prejudice, duty to preserve, adverse inference, retention policy
Key Insight: necessity of preservation order
Nature of Case: misappropriation of trade secrets
Electronic Data Involved: laptop, mobile phone, email
Keywords: email providers, deleted emails, significant concerns, threats to preservation, capability to preserve, irreparable harm, ex parte, seizure order, expedited discovery
Key Insight: Where forensic examination revealed that immediately prior to that examination Plaintiff had run ?several ?optimizer? or ?data destruction programs?? that destroyed ?some data? the court found that Plaintiff acted willfully and, addressing Defendant?s request for dismissal, cited newly amended Rule 37(e) for the proposition that the ?Court need impose ?measures no greater than necessary to cure the prejudice?? and ordered that Plaintiff would be precluded for presenting evidence that Defendants?because of her actions?could not confirm as authentic but reasoned that dismissal was not necessary
Nature of Case: Employment discrimination
Electronic Data Involved: ESI
Key Insight: Where relevant video was lost as a result of mistakes made by representatives of the defendant who were attempting to pull and preserve the video from the recording system for the first time and where CDs with the footage ?vanished,? the court reasoned that the errors were symptoms of a ?larger problem: an inadequate information management and evidence retention policy? (a point it relied on significantly in its discussion of culpability) and also found that the plaintiff was prejudiced and imposed sanctions allowing Plaintiff to present evidence that the video existed and was lost through negligence and indicated that if Defendant attempted to elicit testimony from a deputy regarding what he saw on the video (that was viewed by several of defendant?s representatives before it was lost), the jury would be instructed to make any inference they believed was appropriate; the court also ordered Defendant to pay Plaintiff?s expenses and fees incurred in bringing the motion
Nature of Case: Traffic accident involving a police officer
Electronic Data Involved: Video footage
Key Insight: Where Plaintiff specifically requested preservation of certain video that was not preserved, court concluded that Defendant ?simply ignored? the request and imposed an adverse inference that the video would have been favorable to Plaintiff; for Defendant?s failure to preserve surveillance video of alleged harassment for which there was no specific request to preserve, court reasoned that Defendant had a duty to investigate the allegation and preserve any video that existed of the incident and concluded that the jurors would be instructed that ?Defendant had a duty to preserve the video if it existed and that they may, but are not required to, infer that the video recording would have been favorable to the Plaintiff?
Nature of Case: Employment litigation (discrimination, harassment, etc.)
Electronic Data Involved: Video surveillance footage
Key Insight: Where pro se prisoner sought production of video footage of the alleged use of excessive force but failed to request the video or file a grievance for 30 days and the tape was recorded over, the court found that Plaintiff had failed to demonstrate that Defendant had not taken reasonable steps to preserve the footage or that Defendant acted with the intent to deprive and denied the motion for sanctions
Nature of Case: Pro se prisoner defendant, excessive force
Electronic Data Involved: Video footage
Key Insight: Plaintiff created audio recordings during her employment with Defendant, transcribing some of them and later deleting recordings she felt to be insignificant. Plaintiff also claimed her computer ?crashed? in 2011 or 2012 and that caused her to lose material (this issue not raised at previous deposition). After the close of trial, Defendant filed a Renewed Motion for Adverse Spoliation Inference and to Strike Testimony. The court found Plaintiff had a duty to preserve because she made the recordings after she filed a grievance and EEOC charge. Plaintiff admitted that the deleted recordings did not ?capture unfair and discriminatory treatment of her,? which the court found to ?cure any prejudice Defendant may have suffered.? The court found that Plaintiff?s actions ?were intentional and more than merely negligent, but she did not act with a sinister intent,? and that Plaintiff did not understand she needed to preserve all the recordings. The court will consider Defendant?s evidence of Plaintiffs spoliation when it weighs the evidence presented at trial, but otherwise denied Defendant?s request to impose sanctions.
Nature of Case: Renewed Motion for Adverse Spoliation Inference and to Strike Testimony, on underlying case of discrimination and retaliation
Electronic Data Involved: Audio recordings
Key Insight: Court declined to compel Defendant to conduct additional searches of witnesses? email accounts using 88 new search terms and excluding Plaintiff?s name finding that the request was ?overly broad and not proportional to the case? and reasoning that Plaintiff relied upon a multi-plaintiff case to justify her position and that she had not provided specifics regarding what she reasonably expected to find or shown that the information could not be found through other means, such as by asking additional questions of witnesses already scheduled for deposition ; court ordered Defendant to produce the relevant policies it operated under where Defendant claimed emails were deleted in the ordinary course of business according to Company policy, and that Defendant should also provide Plaintiff with the date of the deletion and the name of the person who made the deletion or the process of deletion, if known
Nature of Case: Wrongful termination
Electronic Data Involved: Email
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