Tag:Data Preservation

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Thomley v. Bennett (S.D. Ga., 2016)
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SEC v. CKB168 Holdings Inc. (E.D.N.Y., 2016)
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Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL 171236 (S.D. Ga Jan. 13, 2015)
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Scott v. Moniz, No. 3:14-CV-5684-RJB, 2015 WL 38223705 (W.D. Wash. June 19, 2015)
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Malibu Media v. Ricupero, No. 2:14?cv?821 2015, 2015 WL 4273463 (S.D. Ohio July 14, 2015)
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Loop AI Labs Inc. v. Gatti, 2015 WL 1090180 (N.D.Cal. Mar. 12, 2015)
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Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)
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Ballard v. Williams, No. 3:10-cv-01456, 2015 WL 179071 (M.D. Pa. Jan. 14, 2015)
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AJ Holding Grp. v. IP Holdings, 129 A.D.3d 504 (N.Y. App. Div. 2015)
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F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)

Thomley v. Bennett (S.D. Ga., 2016)

Key Insight: whether defendants acted with prejudice in not preserving “loop type system” video footage; whether spoliation sanctions apply for destroyed evidence

Nature of Case: Eighth Amendment claims for deliberate indifference and excessive force (cruel and unusual punishment)

Electronic Data Involved: medical records

Keywords: spoliation, preserve, prejudice, intent, bad faith, loop type system

View Case Opinion

SEC v. CKB168 Holdings Inc. (E.D.N.Y., 2016)

Key Insight: are the defendants acting in bad faith by not confirming that evidence doesn’t exist or was it not preserved, in that case is it sanctionable

Nature of Case: violation of Securities act, violation of the exchange act and rule 10b-5, unregistered securities offerings

Electronic Data Involved: “back office data” information as to whether defendants explored public offering

Keywords: bad faith, sanctions, spoliation, public offering

View Case Opinion

Pinkney v. Winn-Dixie Stores, Inc., No. CV214-075, 2015 WL 171236 (S.D. Ga Jan. 13, 2015)

Key Insight: Plaintiff moved for spoliation sanctions after Defendant stated in deposition they took accident scene photographs, but did not provide the photographs and stated all accident photographs had been provided. Plaintiff claimed Defendant?s sole possession was circumstantial evidence Defendant acted affirmatively in destroying the photographs. However, Court would not infer bad faith because it was possible ?the photographs were lost or destroyed haphazardly,? and concluded circumstantial evidence cannot prove bad faith ?without any evidence that the loss or destruction of the photographs was, or could only be, due to a deliberate, intentional act of Defendant or its agent.?

Nature of Case: Personal Injury

Electronic Data Involved: Photographs of slip and fall scene

Scott v. Moniz, No. 3:14-CV-5684-RJB, 2015 WL 38223705 (W.D. Wash. June 19, 2015)

Key Insight: Failure to preserve emails after defaulting to regular document retention policies based on mistaken belief that Plaintiff had not appealed the dismissal of her case was ?at least negligent,? but court continued motion subject to renoting when discovery was complete to allow for an evaluation of prejudice

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Malibu Media v. Ricupero, No. 2:14?cv?821 2015, 2015 WL 4273463 (S.D. Ohio July 14, 2015)

Key Insight: Court denied motion for sanctions where plaintiff?s failure to preserve emails, and its failure to implement any uniform or centralized plan to preserve data or the various devices used by the key players in the transaction, demonstrated gross negligence which gave rise to a rebuttable presumption that the spoliated documents were relevant, but plaintiff rebutted the presumption by demonstrating that the defenses available to defendant all necessarily turned on communications to or with them, not plaintiff?s internal communications.

Nature of Case: Copyright infringement

Electronic Data Involved: Computer hard drive

Loop AI Labs Inc. v. Gatti, 2015 WL 1090180 (N.D.Cal. Mar. 12, 2015)

Key Insight: Court denied plaintiff?s motion for temporary restraining order which requested restrictions on defendant?s assets, and orders prohibiting destruction of evidence, expediting discovery, allowing plaintiff access to defendant?s email and social media accounts, and for the return of a laptop because the court found plaintiff failed to demonstrate it was likely to suffer irreparable harm absent injunctive relief. In asserting it would suffer irreparable harm, plaintiff argued defendant had demonstrated she would not observe her obligation to preserve evidence, but provided no evidence in support of this claim. Stating that ?suspicions are not a proper ground for injunctive relief,? the Court noted that counsel for each defendant were ?expected to advise their clients of their duty to preserve potentially relevant evidence and the serious consequences for failing to do so,? but denied further relief.

Nature of Case: Misappropriation of Trade Secrets; Breach of Contract

Electronic Data Involved: Email, social media, laptop

Moulton v. Bane, No. 14-cv-265-JD, 2015 WL 7776892 (S.D.N.H. Dec. 2, 2015)

Key Insight: Where Defendant unintentionally lost text messages when his service provider failed to transfer those text messages to his new phone?despite his request to transfer ?everything??and where the texts were later recovered by a forensic analysist, court declined to impose ?punitive sanctions? and ordered Defendant to pay the cost of retrieving the messages

Electronic Data Involved: Text messages (WhatsApp)

Ballard v. Williams, No. 3:10-cv-01456, 2015 WL 179071 (M.D. Pa. Jan. 14, 2015)

Key Insight: Where surveillance footage of hallway in which alleged assault occurred was overwritten, the court reasoned there was no indication that the evidence was intentionally lost or destroyed, that the named defendants were not responsible for the video system, and that defendant was not ?materially prejudiced? because he could still testify as to what happened and therefore denied the motion for sanctions

Nature of Case: Alleged assault by prison officers and related claims

Electronic Data Involved: Surveillance video

AJ Holding Grp. v. IP Holdings, 129 A.D.3d 504 (N.Y. App. Div. 2015)

Key Insight: Court denied motion for sanctions where plaintiff?s failure to preserve emails, and its failure to implement any uniform or centralized plan to preserve data or the various devices used by the key players in the transaction, demonstrated gross negligence which gave rise to a rebuttable presumption that the spoliated documents were relevant, but plaintiff rebutted the presumption by demonstrating that the defenses available to defendant all necessarily turned on communications to or with them, not plaintiff?s internal communications.

Nature of Case: Breach of Contract

Electronic Data Involved: Email

F & J Samame, Inc. v. Arco Iris Ice Cream, SA?13?CV?365?XR, 2015 WL 4068575 (W.D. Tex. Jul. 2, 2015)

Key Insight: Court granted in part plaintiff?s motion for attorneys? fees, where defendant had used software to wipe a PC and a laptop, deleting and overwriting more than 62,000 files, and violated a court order, and stalled the discovery process. Court denied in part plaintiff?s motion for sanctions, however, instead granting leave for new depositions, saying that while its order ?does not address the loss of evidence that may establish willful infringement,? the alleged infringing materials ?are available for the jury to assess whether infringement has incurred or not.?

Nature of Case: Trade dress and Trademark infringement

Electronic Data Involved: Email and ESI on hard drive

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