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 Plaintiff?s internet browsing history was highly relevant to her claims and to establish damages but was lost as the result of her computer crashing and the use of a cleaning program after the duty to preserve arose, the court did not conclude that Plaintiff acted intentionally to deprive Defendant of the information (citing a lack of evidence to dispute Plaintiff?s claim that she regularly cleaned her hard drives prior to litigation) but did find that sanctions were warranted to cure prejudice and indicated that the court would ?presume that the absence of any cookies is unfavorable to Feist in that she cannot attribute a specific number of redirections to Paxfire? and precluded Feist from arguing in favor of statutory damages for specific internet searches or proffering evidence of specific violations
Nature of Case: Wiretap Act violations
Electronic Data Involved: Internet history
Key Insight: Defendant sought production of Plaintiff?s emails, imposition of spoliation sanctions, and an extension of the discovery deadline. Plaintiff previously agreed to produce responsive documents from her Gmail and LinkedIn account, but failed to do so (later third party productions contained emails sent from her Gmail account). Plaintiff admitted she deleted emails from her Gmail account at various times, and evidence showed she instructed a subordinate to start using their personal email addresses and to delete various emails. The court found (i) a duty to preserve existed as of at least November 30, 2013, (ii) that Plaintiff breached that duty when she deleted emails, and (iii) there was a strong inference that the emails would have been unfavorable to Plaintiff because (iv) she deleted the emails in bad faith (to admittedly ?hide? the information). The court denied Defendant?s motion for equitable relief, but allowed Defendant?s alternate request that Plaintiff must provide full access to her Gmail account (details to be addressed in a meet-and-confer).
Nature of Case: Breach of contract and related claims
Electronic Data Involved: Emails (gmail)
Key Insight: Addressing Plaintiff?s claim that defendant?s duty to preserve surveillance footage was triggered by the fact that it knew Defendant was robbed in its hotel, that the police were involved, and that both the police and Defendants ?were using the footage to investigate the incident? (perhaps evidenced by the preservation of different footage at the request of police), the court reasoned that ??mere knowledge of the accident and the possible causes of the accident? is not enough to create a duty to preserve evidence? and found that defendant?s spoliation claim failed
Nature of Case: Claims arising from robbery of hotel guest
Electronic Data Involved: Surveillance footage
Key Insight: Where Defendant used CCleaner on his work laptop and failed to produce three thumb drives, court concluded that the relevance prong of its analysis was satisfied (noting Plaintiff?s lack of credibility), that there was a duty to preserve, and that information was actually suppressed or withheld and, citing Rule 37(e,) imposed a presumptive adverse inference upon the determination that the loss was intentional, based on the timing of the spoliation (shortly following receipt of a cease and desist letter, including Plaintiff?s potential claims), among other things
Nature of Case: Claims arising from employee’s departure and start of competing business
Electronic Data Involved: ESI
Key Insight: Prison employees? failure to preserve surveillance footage of inmate altercation despite notice of the obligation to do so was negligent; negligence imputed to other employees named as Defendants in Eighth Amendment claim where, despite the lack of a conventional agency relationship, the negligent/spoliating non-parties were not merely ?disinterested third parties? but rather were employees of the institution(s) responsible for preserving evidence in prisoner litigation and where requiring a conventional agency relationship would ?present a dilemma in the context of prison litigation .. where responsibility for preserving evidence may be spread out among multiple officials within an institute and where the institutions themselves are typically immune from suit?; as sanction, court forbade Defendants from putting on evidence related to Plaintiff?s disciplinary charges and conviction or the actual contents of the video and indicated it would instruct the jury that Plaintiff had requested the footage be preserved and it was not and that ?the jurors should not assume that the lack of corroborating objective evidence? undermined Plaintiff?s ?version of events surrounding the fight?
Nature of Case: Pro se Eighth Amendment Claims (prison litigation)
Electronic Data Involved: Surveillance footage
Key Insight: Plaintiff seeks sanctions for Defendant allegedly failing to preserve ESI including browsing history, emails and pretreatment documents on Plaintiff?s work computer. The court quotes Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012), ?it is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.? Plaintiff failed to show that the alleged spoliated information existed at the time Defendant reasonably could have anticipated litigation but that the Defendant failed to preserve it. The court continued its analysis, finding that ?even if the evidence existed at the time Defendant had a duty to preserve it,? Plaintiff failed to show prejudice (which could have been mitigated through depositions) or bad faith on the part of Defendant. The court denied Plaintiff?s motion.
Electronic Data Involved: Internet browsing history, emails
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