Data Preservation – Page 23 – Electronic Discovery Law

Keim v. ADF Midatlantic LLC, No. 12-CV-80577-MARRA/MATTHEWMAN, 2016 WL 7048835 (S.D. Fla. Dec. 5, 2016)

Dec 01 2016

Key Insight: Defendant brought a motion for sanctions under Fed. R. Civ. P 37(e)(1) alleging Plaintiff failed to preserve text messages on his cell phone. The text messages at issue were dated in February and March of 2011, while Plaintiff admitted that he anticipated bringing suit on or before October 1, 2011. In his deposition, Plaintiff testified that ?he deletes most of his text messages and does not ?keep them around that long,?? and after carefully reviewing Plaintiff?s deposition transcript, it was ?clear to the court that Plaintiff is utterly confused and uncertain of anything related to the existence or deletion of the February to March 2011 text messages.? The court found that (i) it was possible that the text messages at issue were deleted before a duty to preserve arose; (ii) the ESI was not ?lost because a party failed to take reasonable steps to preserve it;? and (iii) the evidence could not be discovered from other sources. Defendant?s motion for sanctions was denied.

Electronic Data Involved: Text messages

Feist v Paxfire, Inc., No. 11-CV-5436 (LGS) (RLE), 2016 WL 4540830 (S.D.N.Y. Aug. 29, 2016)

Dec 01 2016

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

Cohn v. Guaranteed Rate, Inc., No. 1:14-cv-9369, 2016 WL 7157358 (N.D. Ill. Dec 8, 2016)

Dec 01 2016

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)

Mathur v. Hospitality Props. Trust, No. 13-cv-7206, 2016 WL 520999 (N.D. Ill. Feb. 10, 2016)

Dec 01 2016

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

Lexpath Techs. Holdings, Inc., N0. 13-cv-5379-PGS-LHG, 2016 WL 4544344 (D.N.J. Aug. 30, 2016)

Dec 01 2016

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

Muhammad v. Mathena, No. 7:14cv00529, 2016 WL 8116155 (W.D. Va. Dec. 12, 2016)

Dec 01 2016

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

Marshall v. Dentfirst, P.C., No. 1:14-cv-2421-WSD, 2016 WL 1222270 (N.D. Ga. Mar. 24, 2016)

Dec 01 2016

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

Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2015 WL 5027899 (E.D.N.Y. Aug. 25, 2015); Official Comm. Of Unsecured Creditors of Exeter Holdings Ltd v. Haltman, No. CV 13-5475(JS)(AKT), 2016 WL 128154 (E.D.N.Y. Jan. 12, 2016)

Dec 01 2016

Key Insight: Addressing motion for sanctions for the loss of emails in third party custody (GoDaddy), Iron Mountain back ups, and miscellaneous computer files, the Magistrate Judge concluded: 1)that Exeter had a duty preserve reasoning that since 2009 it had been involved in other litigation involving the disclosure of its books, records and financial documents, and that Exeter therefore knew or should have known that the documents ?could be relevant to future litigation? and also found that even if the filing of the 2009 lawsuit (involving different parties) did not trigger the preservation obligation, receipt of a 2009 subpoena should have and that in any event, the duty to preserve arose no later than Exeter?s 2011 bankruptcy filing; 2)that Exeter?s loss of ESI was ?intentional and done in bad faith? absent evidence of any effort to ensure preservation or to contact the third-party providers to inform them of the duty; and 3) that as a result of the intentional loss, a presumption of relevance was warranted and therefore recommended a sanction of an permissive adverse inference at trial; upon Exeter?s objection, District Court adopted the sanctions recommendation entirely and indicated that ?[W]hen there has been intentional destruction of evidence by an officer of a closely held corporation, other officers of the closely held entity may be subject to sanctions, even if they did not have direct control of the evidence at issue.?

Nature of Case: Plaintiff claims that Defendants defrauded Exeter?s creditors by transferring funds from Exeter to themselves, certain trusts, and other entities.

Electronic Data Involved: Email in third-party custody, Iron Mountain backups, miscelaneous ESI

GN Netcom v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833 (D. Del. July 12, 2016)

Dec 01 2016

Key Insight: Where a senior executive deleted massive amounts of email and instructed others to do the same despite a duty to preserve and the company?s issuance of a litigation hold, the court indicated that the company?s efforts did not absolve it of all responsibility for the failures of a member of its senior management (and noted the company?s own bad conduct in litigating the deletion issue, including its initial refusal to disclose the identity of its forensic expert) and concluded that reasonable steps were not taken to preserve and found that the deletions were in bad faith and prejudicial to the Plaintiff and imposed sanctions including monetary sanctions in the form of reasonable fees and costs, punitive sanctions in the amount of $3 million and a permissive adverse inference

Nature of Case: Antitrust

Electronic Data Involved: email

Marten Transp. Ltd. v. Platform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016)

Dec 01 2016

Key Insight: Court denied motion for spoliation sanctions where, although a general duty to preserve arose in 2013, the duty to preserve the internet history of the at-issue employee did not arise until June 2015, which was after the employee had been moved to a different work station

Nature of Case: Trademark infringement, unfair competition

Electronic Data Involved: Internet history

Tag:Data Preservation