Data Preservation – Page 21 – Electronic Discovery Law

Moore v. Lowe?s Home Centers, LLC, No. 14-1459 RJB, 2016 WL 687111 (W.D. Wash. Feb. 19, 2016)

Dec 01 2016

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

Shaffer v. Gaither, No. 5:14-cv-00106-MOC-DSC (W.D.N.C. Sept. 1, 2016)

Dec 01 2016

Key Insight: Court found dismissal was a disproportionate sanction for failure to preserve text messages lost when phone was dropped and broken but did conclude that Plaintiff and her counsel failed to take ?reasonable steps to preserve? those texts which resided only on Plaintiff?s phone, reasoning that ?[o]nce it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one?; court indicated defendant would be free to examine witnesses who had read the texts and explore the circumstances surrounding their destruction and further indicated that the court had not ruled out a spoliation instruction, an option reserved until after the court heard the evidence at trial

Nature of Case: Employment litigation

Electronic Data Involved: Explicit text messages

Accurso v. Infra-Red Servs., Inc., —F. Supp. 3d.—, 2016 WL 930686 (E.D. Pa. Mar. 11, 2016)

Dec 01 2016

Key Insight: Court denied motion for a negative inference for Plaintiff?s alleged deletion of emails evidencing Plaintiff?s intention of taking business from Defendants where Defendants provided no basis for the court to conclude: 1) that there was ?actual suppression or destruction of evidence, let alone that [Plaintiff] was responsible,? 2) that the evidence was not obtainable from other sources, or 3) that Defendant acted with the requisite intent to deprive under Fed. R. Civ. P. 37(e)

Nature of Case: Claims and counterclaims include: violations of Employee Polygraph Protection Act, breach of contract, intentional interference with contract, fraud, misappropriation of trade secrets

Electronic Data Involved: Emails

Applebaum v. Target Corp., 831 F.3d 740 (6th Cir. 2016)

Dec 01 2016

Key Insight: In affirming the verdict of the trial court, the circuit court specifically indicated that the trial court did not err in refusing to give an adverse inference instruction and in its analysis recognized recent amendments to Rule 37(e): ?It bears adding that to the extent Applebaum sought an adverse inference instruction for spoliation of electronic information, a 2015 amendment to Civil Rule 37(e)(2) required her to show that Target had ?intent? to deprive her of the information?s use. A showing of negligence or even gross negligence will not do the trick. Fed. R. Civ. P. 37, 2015 Advisory Comm. Note. Applebaum would not have been able to show any degree of fault for Target?s alleged destruction of records, because she cannot show that Target destroyed the records?if they even existed in the first place?after it was put on notice of litigation.?

Nature of Case: Products Liability

Electronic Data Involved: ESI

Delphi Commc?ns. Inc. v. Advanced Computing Techs. Inc., No. A15A1655, 2016 WL 1176998 (Ga. Ct. App. Mar. 28, 2016)

Dec 01 2016

Key Insight: Appellate court upheld trial court?s decision to strike defendants? answer and enter default judgment (as to one claim) as a spoliation sanction for Defendants? failure to preserve an image of their hard drives

Nature of Case: Claims against former employees and thier employer alleging copying of Plaintiff’s software products and solicitation of Plaintiff’s customers without consent

Electronic Data Involved: ESI

Okada v. Whitehead, No. SACV 15-01449-JLS (KESx), 2016 WL 9448484 (C.D. Cal. June 16, 2016)

Dec 01 2016

Key Insight: Where Defendant explained that certain emails were not produced because he lost access to the account which subsequently expired and thus the emails were not in his possession custody or control, the court concluded that the duty to preserve was triggered prior to the expiration of the account by the filing of a separate lawsuit involving the same at-issue property in which the parties to this case were codefendants and explained in footnote that it could locate no case law limiting the duty to preserve to an adversary as opposed to all parties to litigation and noted that the duty to preserve ?may carry over to subsequent lawsuits involving the same subject matter?; finding the spoliation was prejudicial but not intentional, the court ordered the jury be informed of the failure to preserve, but not instructed to presume anything about the content of the emails

Nature of Case: Breach of Settlement Agreement

Electronic Data Involved: e-mail

Archer v. York City Sch. Dist., No. 1:13-cv-2826, 2016 WL 7451562 (M.D. Pa. Dec. 28, 2016)

Dec 01 2016

Key Insight: Where Plaintiffs alleged spoliation resulting from school district?s deletion of former employee?s email account in accordance with its policy and more than 11 months before a complaint was filed, the court concluded that Plaintiffs presented ?no factual basis? in support of their allegations of intentional destruction of evidence favorable to Plaintiffs and declined to find that the school district?s decision not to renew the at-issue school?s charter was sufficient to trigger a duty to preserve such that the deletion would constitute spoliation (?Plaintiffs? argument that by the simple act of doing their jobs, Defendants should have been on notice of litigation that would not commence until nearly a full year later does not create knowledge that litigation is ?pending or probable.?)

Nature of Case: Claims arising from non-renewal of charter school’s charter

Electronic Data Involved: Former employee’s email account

Moore v. Lowe?s Home Centers, LLC, No. 2:14-cv-01459 RJB, 2016 WL 3458353 (W.D. Wash. June 24, 2016)

Dec 01 2016

Key Insight: No sanctions imposed for Defendant?s deletion of Plaintiff?s email in accordance with Defendant?s email retention policy following her termination where Plaintiff?s emails to HR and management ?did not raise ?potential claims? but rather raise Plaintiff?s concerns about workplace gossip and challenging relationships? and where other ?low-level employees? general awareness that Plaintiff was rumored to pursue litigation? did not result in a duty to preserve

Nature of Case: Employment litigation

Electronic Data Involved: Emails of departed/terminated employee

O?Berry v. Turner, Nos. 7-15-CV-00064-HL, 7:15:CV-00075-HL, 2016 WL 1700403 (M.D. Ga. Apr. 27, 2016)

Dec 01 2016

Key Insight: Where custodian printed single paper copy of relevant driver?s log and PeopleNet data to be maintained in the usual course of business, did nothing more upon receipt of a request for preservation and ultimately misplaced the envelope in which the information was maintained despite claiming to have done ?everything in his power to preserve evidence,? the court found that Defendant filed to take reasonable steps to preserve the data and acted with the intent to deprive Plaintiffs of the information in litigation, reasoning that it was ?simply irresponsible? to print a single paper copy for preservation and noting Defendant?s lack of a document preservation policy and the failure of counsel to contact the at-issue custodian for approximately two and one half years following receipt of the request to preserve, among other things: ?All of these facts, when considered together, lead the Court to conclude that the loss of the at-issue ESI was beyond the result of mere negligence. Such irresponsible and shiftless behavior can only lead to one conclusion?that ADM and Archer Daniel Midlands Company acted with the intent to deprive ??

Nature of Case: Automobile accident

Electronic Data Involved: Driver’s log, PeopleNet data

Bagley v. Yale Univ., No. 3:13-CV-1890 (CSH), 2016 WL 7407707 (D. Conn. Dec. 22, 2016)

Dec 01 2016

Key Insight: Court granted Plaintiff?s motion to compel production of litigation hold notices and related responses to a survey regarding recipients? computer use where, despite the absence of specific evidence of spoliation or a pending spoliation motion, the delayed (9-11 months) and rolling issuance of litigation holds was described by the court as ?leisurely, to an extent making it impossible to dismiss as frivolous [Plaintiff?s] suggestion that she might move for a spoliation sanction? and where the court reasoned that Plaintiff was ?entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim? [sic]; regarding assertions that the hold notices were privileged, the court reasoned that ?the predominant purpose of the communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do?; court?s analysis included identification of six ?decisive questions? relevant to ?spoliation cases involving litigation hold notices? including, when the duty to preserve arose, whether litigation holds were issued, when they were issued, what they said, how recipients responded and what further action was taken beyond the litigation holds to preserve evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Litigation Hold notices and survey to recipients regarding computer use

Tag:Data Preservation