Data Preservation – Page 2 – Electronic Discovery Law

iMessages Are No Longer Immutable: The Ability to Edit and Unsend iMessages Provided by Apple iOS 16 Spurs New E-Discovery Questions

Sep 23 2022

On September 16th, Apple released iOS 16, which now allows users to edit or unsend iMessages. A sender can edit an iMessage up to five times within fifteen minutes after the message is sent. A sender can also unsend an iMessage within two minutes after the message is sent. Recipients of such messages receive an alert that the iMessage was unsent or edited, but do not see the specific changes.

Hamilton v. Oswego Community Unit School District 308 (N.D. Ill. 2022)

Feb 25 2022

Key Insight: Plaintiffs sought a motion for sanctions based on spoliation of evidence based on defendants’ failure to preserve a photograph of their child’s bruise that was taken by the school nurse that led to a call to the DCFS hotline. The court found that defendants did not have a duty to preserve the photograph because it was not reasonably foreseeable the instant litigation would be forthcoming. At the time the nurse deleted the photo there was no indication that plaintiffs were contemplating litigation against the school for anything related to the nurse’s visit or the report to DCFS. As such, there was no duty to preserve the photo. Even if there was a duty to preserve the photo, the court found that plaintiffs were not prejudiced by its deletion.

Nature of Case: Civil Rights

Electronic Data Involved: ESI, Photographs

Case Summary

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Fourth Dimension Software v. Der Touristik Deutschland GmbH (N.D. Cal. 2021)

Dec 15 2021

Key Insight: Plaintiff moved for sanctions against defendant alleging that it had a duty to preserve usage records for the software at issue in its breach of contract claim. The court found that defendant had a duty to preserve the usage records, it violated the duty by deleting the records, the deletion prejudiced plaintiff and defendant acted with intent to deprive plaintiff of the records’ use. The duty to preserve the records arose before the litigation was filed since (1) plaintiff gave notice to defendant of both license overuse and third-party use claims; (2) the parties proceeded to attempt to negotiate a settlement of the claims for nearly a year; and (3) plaintiff sent a letter in August 2018 stating that it intended to file a complaint. Shortly after receiving notice that plaintiff intended to file suit, defendant destroyed the records, supporting an inference that defendant intentionally destroyed the usage records. The court ordered that an adverse jury instruction would be an appropriate sanction for defendant’s conduct.

Nature of Case: Breach of Contract

Electronic Data Involved: Usage Records

Case Summary

America West Bank Members v. State of Utah (D. Utah 2021)

Nov 10 2021

Key Insight: Plaintiff filed a motion to compel after learning through the discovery process that defendants purged or lost emails and documents. Plaintiff sought “discovery on discovery” to discern the identities of individuals whose emails would have been responsive if those emails were still available, the identification of documents or categories of documents no longer available, and an explanation as to why other responsive documents were not produced. The court granted plaintiff’s request but found it “strictly limited to the purged former employee email accounts.” No additional depositions were permitted and plaintiff’s fourteen interrogatories on this topic were “neither reasonable nor proportional” to the limited nature of the discovery needed.

Nature of Case: Civil rights

Electronic Data Involved: Email and documents

Case Summary

Collins v. ControlWorx, LLC (M.D. La. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce audio recordings, hard drives, social media posts. Defendants’ Motion was granted. At least a portion of the data that Plaintiff was obligated to produce had been destroyed and/or missing due to a flood. After Plaintiff informed it of us, Defendant agreed to provide Plaintiff with an extension of time to correct his deficient discovery responses. Contingent on time for Plaintiff to allow his deposition to be retaken.

In his Response to Defendant’s Motion, Plaintiff did not assert that he complied with his discovery obligations but rather than production of the information sought was unreasonably cumulative or duplicative. For approximately 18 requests for production, Plaintiff failed to provide a response or objection, and failed to timely supplement his responses.

The Court granted largely Defendant’s Motion to Compel, ordering Plaintiff to respond to its requests for production, and supplement his responses to interrogatories, but also limiting Plaintiff’s responses to documents that would not require disclosure of attorney-client privilege and/or information that was not overly broad. Moreover, the Court ordered Plaintiff to appear for an additional supplemental deposition and also state that electronically stored information relevant to the litigation was actually destroyed (due to flooding) and submit the damaged storage devises for expert inspection. The

respective parties were responsible for their own attorney’s fees and costs regarding the discovery issues.

Nature of Case: Employment Discrimination, Family and Medical Leave Act

Electronic Data Involved: Hard Drives, Audio Recordings, Social Media Posts

Case Summary

Novit v. Metropolitan School District of Warren Township (S.D. Ind. 2021)

Aug 24 2021

Key Insight: Plaintiffs filed a motion for sanctions on spoliation related to the video footage from a school bus where plaintiffs’ child suffered injuries. Defendant permitted plaintiffs to view the video of the incident and also produced the footage to plaintiffs in discovery. Plaintiffs later asked for extended video coverage from the date of the incident. Defendant did not have additional video because the bus hard drive had either been looped over, wiped clean, or used for parts. The court noted, “a spoliation sanction is proper only when a party has a duty to preserve evidence because he knew, or should have known, that litigation was imminent, and the movant demonstrates that the evidence was destroyed in bad faith, with the intent to deprive another party of the information’s use in the litigation.” Thus, the court found no evidence to support a blanket accusation of spoliation when defendant preserved the relevant footage, acted reasonably by saving the relevant portion, and placing the bus hard drive back into operation.

Nature of Case: Personal injury, Civil rights

Electronic Data Involved: Video footage

Case Summary

Manning v. Safelite Fulfillment, Inc. (D.N.J. 2021)

Aug 08 2021

Key Insight: Defendants filed a motion for spoliation sanctions under FRCP 37(e) based on plaintiff’s deletion of certain Facebook messages and emails. Plaintiff claimed he deleted the messages to free up memory on his mobile phone. The court adopted the magistrate judge’s report and recommendations, finding plaintiff’s failure to preserve certain ESI caused prejudice to defendants warranting relief, but did not conclude that plaintiff did so with an intent to deprive defendants the use of the information in litigation. Plaintiff had an obligation to preserve the ESI; he deleted certain messages after he filed his lawsuit; and took no affirmative measures to preserve the ESI despite a duty to do so. The court allowed the introduction of a jury question on the destruction of some of the ESI evidence but reserved ruling on harsher sanctions.

Nature of Case: Employment discrimination

Electronic Data Involved: Facebook, Email

Case Summary

Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)

Key Insight:

Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.

The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails, Metadata, PDFs

Case Summary

Doe v. Purdue University (N.D. Ind. July 2, 2021)

Jul 07 2021

Key Insight: Defendants filed a motion for spoliation of evidence and sanctions after plaintiff failed to provide Snapchat data consistent with the parties’ joint stipulation and prior court orders, and deleted certain Snapchat files that were subject to the stipulation and orders. Plaintiff admitted he had deleted some files from his “memories” folder in Snapchat, but claimed they were irrelevant, and he did so to free up memory on his phone. The court found plaintiff was under a duty to preserve the Snapchat data and he breached that duty when he destroyed the data. Without the deleted files and believing plaintiff’s claim that he deleted the files to free up space and memory on his phone, the court could not find that plaintiff did so with the purpose of hiding adverse information and declined to dismiss plaintiff’s complaint. The court imposed monetary sanctions and ordered plaintiff to pay defendants’ attorney’s fees and costs associated with litigating the motion, and allowed defendants to introduce a limited jury instruction regarding the destruction of ESI.

Nature of Case: Civil Rights

Electronic Data Involved: Snapchat data

Case Summary

Tag:Data Preservation