Data Preservation – Page 27 – Electronic Discovery Law

Bloom v. Toliver, No. 12-CV-169-JED-FHM, 2015 WL 5344360 (N.D. Okla. Sept. 14, 2015)

Dec 01 2015

Key Insight: Where prisoner alleged that he was attacked by another inmate and that corrections officers failed to properly respond, court found prison had a duty to preserve relevant surveillance footage and the recording of the involved-officer?s phone call to his wife immediately following the incident and that the failure to do so resulted in prejudice; court ordered evidentiary sanctions for the loss of certain footage, but reserved a determination re: sanctions as to lost video of the aftermath of the attack and the officer?s phone call

Nature of Case: Civil rights

Electronic Data Involved: Video surveillance footage and call recording

HMS Holdings Corp. v. Arendt, NO. A754/2014, 2015 WL 2403099 (N.Y. Sup. Ct. May 19, 2015)

Dec 01 2015

Key Insight: For one defendant?s repeated use of a cleaning software (?Disk Utility? and its ?Secure Erase Free Space? function) to delete files and loss of a relevant hard drive without an adequate explanation and for another defendant?s loss of relevant ESI, including her intentional deletion of information from the desktop registry and her disposal of her cell phone (which she notably was unaware had been automatically backed up each time it was connected to her computer), ongoing deletion of text messages (on her new phone), and misrepresentations about when the old phone was discarded, the court found that a mandatory adverse inference was warranted and rejected Defendants? argument that the court should decline to employ the adverse inference at the preliminary injunction state, reasoning that the objective of promoting fairness was best served by ?employing an adverse inference at all relevant states of the litigation?; court also ordered defendants to pay Plaintiff?s attorneys fees without seeking reimbursement from their new employer and indicated its intention to forward its decision to the NY Bar in light of one defendant?s status as an attorney

Nature of Case: Misappropriation of trade secrets, breach of “post-employment covenants”

Electronic Data Involved: ESI, hard drive, text messages (iphone)

Henry v. Abbott Labs., No. 2:12-cv-841, 2015 WL 5729344 (S.D. Ohio Sept. 30, 2015)

Dec 01 2015

Key Insight: Despite duty to preserve personnel records created by regulation (29 CFR ? 1602.14), court found no ?regulatory violation? in the destruction of documents subject to preservation until a ?final disposition? of the action where documents were destroyed following Plaintiff?s failure to appeal the dismissal of her case; court also found that even if Defendant had an ongoing duty to preserve (because the case was eventually reinstated upon Plaintiff?s motion for relief from the dismissal), there was no evidence of requisite culpability where Defendant reasonably believed (as did the court) that the case had been ?finally adjudicated;? the court also questioned the relevance of the at-issue documents

Nature of Case: Employment discrimination

Electronic Data Involved: ESI: personnel evaluations, surveys related to promotion

Burnett v. Ford Motor Co., No. 3:13?cv?14207, 2015 WL 1650439 (S.D. W. Va. April 14, 2015); Burd v. Ford Motor Co., No. 3:13?cv?20976, 2015 WL 1650447 (S.D. W. Va. April 14, 2015); Johnson v. Ford Motor Co., No. 3:13?cv?06529, 2015 WL 1650428 (S.D. W. Va. April 14, 2015)

Dec 01 2015

Key Insight: Inadvertently produced ESI

Nature of Case: Product Liability

Nuvasive, Inc. v. Madsen Med., Inc., No. 13cv2077 BTM(RBB), 2015 WL 4479147 (S.D. Cal. July 22, 2015)

Dec 01 2015

Key Insight: For Defendant?s failure to preserve its employees? text messages, court imposed an adverse inference.

Electronic Data Involved: Text messages

Charvat v. Valente, No. 12 CV 5746, 2015 WL 4037776 (N.D. Ill. July 1, 2015)

Dec 01 2015

Key Insight: Court declined to impose sanctions for loss of former employees? ESI where ESI was deleted pursuant to ?established document retention policy? absent any evidence of bad faith

Nature of Case: Prohibited Telemarketing

Electronic Data Involved: ESI

United States v. Dish Network, LLC, No. 09-3073, 2015 WL 5970446 (C.D. Ill. Oct. 13, 2015)

Dec 01 2015

Key Insight: For defendant?s failure to preserve and produce relevant evidence, copies or versions of which were discovered on a third party?s hard drive (e.g. correspondence between Defendant?s employee and the third party that were not preserved and produced by the defendant), the court found that Plaintiff ?suffered some prejudice? and thus sanctioned Defendant by taking it as ?established fact? that Defendant had similar communications with all of its ?Order Entry Retailers? (of which the relevant third party was one) of the same ?substantive type and quantity? as those discovered on the third party?s hard drive

Nature of Case: FTC Investigation: TCPA

Electronic Data Involved: ESI, email

Bright Sols. For Dyslexia, Inc. v. Doe, No. 15-cv-01618-JSC, 2015 WL 5159125 (N.D. Cal. Sept. 2, 2015)

Dec 01 2015

Key Insight: Court granted motion for expedited discovery to discover the identity of Defendant Doe; court also granted Plaintiffs? ex parte motion for a preservation order directing eBay, PayPal, and Google to preserve account information where the third parties had no independent duty to preserve absent a court order and where Plaintiffs established that: the at-issue data was regularly destroyed by the third parties in their regular business practices, that Plaintiffs would be ?irreparably harmed? by the loss of the at-issue data (because they could not serve Defendant and stop the alleged infringement), and that the third parties had the capability to maintain the information, particularly because of the limited nature of the request

Nature of Case: Trademark and copyright infringement

DeCastro v. Kavadia, —F.R.D.—, 2015 WL 4619914 (S.D.N.Y. July 6, 2015)

Dec 01 2015

Key Insight: For defendant?s intentional deletion of emails using cleaning software and misrepresentations intended to cover up the same as well as defendant?s failure to produce documents over which he was found to maintain control and misrepresentations related to the same, the magistrate judge recommended a permissive adverse inference and that defendant and counsel, who ?exacerbated? the effects of defendant?s misconduct through incomplete or misleading representations to the court, be jointly and severally liable for plaintiff?s attorneys fees and costs incurred in bringing the motion for sanctions; district court rejected objections to the recommendations and adopted them in full

Electronic Data Involved: Emails, ESI

Ballai v. Kiewit Power Constructors, Co., No. 110166, 2015 WL 423795 (Kan. Ct. App. Jan. 23, 2015)

Dec 01 2015

Key Insight: Court of Appeals of Kansas found no abuse of discretion by the district court for failing to order sanctions related to the recycling of the laptop computer used by appellant during his employment, as the district court did not issue an order to preserve and there is no statutory or common-law duty to preserve evidence in Kansas; court further found no abuse of discretion by the district court for excluding evidence of recycling the computer; court also found that a chat log was relevant, material, and probative and the appellant was protected from prejudice because the district court only allowed the redacted version of the chat log into evidence.

Nature of Case: Employment

Electronic Data Involved: Laptop; Chat Log

Tag:Data Preservation