Data Preservation – Page 30 – Electronic Discovery Law

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

Dec 01 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)

Dec 01 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

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584 (RRM), 2015 WL 4872553 (E.D.N.Y. Jan. 7, 2015)

Dec 01 2015

Key Insight: Rejecting defendants? explanation that their failure to preserve was the result of a vendor?s refusal to continue assistance for the reason of non-payment, the court found that defendants? had a duty to preserve the information stored on the corporate server that began ?well before the vendor stopped providing services? and reasoned that it was defendants? obligation to ?take ?all necessary steps to guarantee that relevant data was both preserved and produced,?? and also found that defendants were ?at a minimum grossly negligent? for failing to preserve relevant evidence where there was no evidence of efforts to preserve a readable copy of the corporate server nor evidence that they sought modification of the freeze on their assets in able to make payments to the vendor; magistrate judge recommended sanction of an adverse inference

Nature of Case: Securities and Exchange Commission investigation (SEC)

Electronic Data Involved: Contents of corporate server / “back office data”

H.M. Elecs., Inc. v. R.F. Techs., Inc., No. 12cv28840-BAS-MDD, 2015 WL 4714908 (S.D. cal. Aug. 7, 2015)

Dec 01 2015

Key Insight: For multiple discovery violations by Defendant and counsel, including improper certification of discovery responses pursuant to Rule 26(g), failure to issue a litigation hold or appropriately supervise discovery, and intentional deletion of responsive materials and delayed production, the court imposed multiple discovery sanctions, including attorneys? fees and costs, issue sanctions, and an adverse inference; notably, the court indicated sanctions would have been imposed under New Rule 37(e), because the court found that the at-issue ESI was lost with the intent to deprive Plaintiff of the information?s use in the litigation; Update: Compensatory sanctions vacated by District Court upon determination that parties? settlement mooted the issue of compensatory sanctions (—F.Supp.3d—, 2016 WL 1267385 (S.D. Cal. Mar. 15, 2016))

Nature of Case: Trademark infringement, false designation of origin, trade dress infringement, trade libel, unfair competition and interference with prospective economic advantage

Electronic Data Involved: ESI

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

In re Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, 2014 WL 355995 (W.D. La. Jan. 30, 2014)

Dec 01 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Mpala v. City of New Haven, No. 3:12-CV-01580 (VLB), 2014 WL 883892 (D. Conn. Mar. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff’s motion for sanctions based on spoliation of evidence denied, where two surveillance videos that plaintiff claimed had been destroyed never actually existed, and relevance of the third video that may have existed was “tenuous at best”

Nature of Case: Pro se plaintiff alleged constitutional violations stemming from his suspension from the New Haven Public Library

Electronic Data Involved: Surveillance videos

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

Tag:Data Preservation