Data Preservation – Page 30 – Electronic Discovery Law

Perez v. Metro Dairy Corp., No. 13 CV 2109(RML), 2015 WL 1535296 (E.D.N.Y. Apr. 6, 2015)

Dec 01 2015

Key Insight: Plaintiffs in this collective action sought spoliation sanctions for Defendants? failure to produce certain relevant evidence, including payroll records, W-2s, cashier sheets, etc. Defendants objected to the motion on the grounds that ?all of their books, records and computers were seized? pursuant to the court?s order in a different case and that there was no time to make any copies or back ups. Accordingly, the court reasoned that Defendants had not destroyed their records and found that ?[u]nder the specific circumstances of this case ? Defendants did not have an obligation to copy their books and records before complying with the court?s order.? Plaintiffs? motion for sanctions was denied.

Nature of Case: Fair Labor Standards Act

Electronic Data Involved: Employment records (payroll, W-2s etc.)

Ralser v. Winn Dixie Stores, Inc., No. 13-2799, 2015 WL 5016351 (E.D. La. Aug. 21, 2015)

Dec 01 2015

Key Insight: Where Defendant was unable to produce the original version of a particularly relevant document in native format and claimed the loss resulted from the automatic deletion of the original version pursuant to the company?s document retention policy, the court declined to impose sanctions reasoning that a later version of the document was provided to Defendant?s legal department, that it was ?not obvious? that prior versions needed to be preserved and that by the time Plaintiff filed his lawsuit following termination, a year had passed and the document would have been destroyed under the retention policy; the court further reasoned:? While this destruction still occurred during the litigation hold, the fact that Winn Dixie?s normal retention policy called for the document?s destruction undermines a finding of bad faith because Winn?Dixie?s failure to adjust the document retention system to comply with the litigation hold signified an omission, and not a commission. In other words, Winn?Dixie?s failure to retain the electronic document was not the result of a directed action to delete the document but rather a failure to turn off the automatic deletion mechanism. Such action, at best, amounts to negligence and does not rise to the level of bad faith.?

Nature of Case: Employment litigation

Electronic Data Involved: Original version of relevant ESI

Evans v. Quintiles Transnational Corp., No. 4:13-cv-00987-RBH, 2015 WL 9455580 (D.S.C. Dec. 23, 2015)

Dec 01 2015

Key Insight: Reasoning that the ?issues of whether the alleged computer file ever existed and, if it did, whether and when Quintiles should have reasonably known that the evidence may be relevant to the anticipated litigation, and whether Quintiles willfully lost or destroyed the computer file rests on credibility determinations that this Court is not in a position make at this stage? and noting the ?disputed facts at issue,? the court indicated its inclination to ?to provide the jury with appropriate guidelines and instructions so that they, after hearing all of the evidence, can resolve any credibility questions and make a determination, first, as to whether the alleged computer file even existed on Plaintiff?s computer, whether and when Quintiles should have reasonably known that the evidence may be relevant to anticipated litigations, and, if so, whether Quintiles willfully lost or destroyed the file? and invited the parties to submit proposed jury instructions

Nature of Case: Wrongful Termination

Electronic Data Involved: Contents of laptop

Bruno?s v. Bozzuto?s, No. 3:09-CV-00874, 2015 WL 1862990 (M.D. Pa. Apr. 23, 2015)

Dec 01 2015

Key Insight: Where plaintiffs intentionally destroyed all paper and electronic copies of relevant financial information despite a duty to preserve citing the burden of storage, the court found that the destruction was in bad faith, but that the prejudice was minimal where other sources of evidence provided sufficient information to support Defendant?s defenses and thus ordered an adverse inference at trial; where one plaintiff was a Certified Public Accountant, court considered her professional capacity when considering the willfulness of the destruction, noting that it ?strains credulity? that an accountant would throw away all financial documents because of ?storage space?

Nature of Case: Breach of Contract

Electronic Data Involved: ESI (financial data)

D.O.H. v. Lake Cent. Sch. Corp., No. 2:11?cv?430, 2015 WL 736419 (N.D. Ind. Feb. 20, 2015)

Dec 01 2015

Key Insight: Finding plaintiff responsible for his prior counsel?s deficient Facebook production, saying he ?voluntarily chose his prior counsel and cannot avoid the consequences for his attorney?s discovery failures? and also responsible for his current counsel?s deficient Twitter production, district court granted Motion for Sanctions filed by defendants in part and ordered plaintiff to produce the entirety of his Twitter profile with redactions for privilege and relevance and to produce a log for any social networking information withheld and to pay the reasonable expenses and attorney?s fees associate with the discovery dispute.

Nature of Case: Civil Rights

Electronic Data Involved: Social media postings

Wilder v. Rockdale Cnty., No. 1:13?CV?2715?RWS, 2015 WL 1724596 (N.D. Ga. April 15, 2015)

Dec 01 2015

Key Insight: Where defendants downloaded some, but not all available video within three days of incident and video-recording system programmed by third-party vendor automatically overwrote old video after thirty days, court found that defendants did not destroy evidence in bad faith and plaintiff was not extremely prejudiced and, therefore, not entitled to spoliation sanctions. Court also reviewed the record related to missing documents and said that defendants had diligently searched for the documents and concluded, ?Apparently, Defendants do not have these documents, and there is no evidence of bad faith or spoliation of evidence. Because Defendants are only required to produce what they have, the Court cannot compel Defendants to produce these documents.?

Nature of Case: Wrongful Death

Electronic Data Involved: Surveillance Video; Documents

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Woodlands Dev. LLC v. Regions Bank, 141 So.3d 357 (La. Ct. App. 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in dismissing Defendant?s case where there was no evidence that Defendant?s document retention policy (which gave employees discretion to determine which emails should be saved and deleted the remainder after 90days) was operated in bad faith and where the potentially relevant emails were already deleted by the time suit was filed, thus lessening (if not eliminating) the impact of the delay in issuing a litigation hold

Nature of Case: Declaratory judgment action brought by promissory note maker and guarantors against note holder

Electronic Data Involved: Email

Crawford v. City of New London, No. 3:11CV1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014)

Dec 01 2014

Key Insight: Spoliation sanctions were not appropriate where original footage on hard drive was recorded over in compliance with standard retention procedures, because: (1) defendants preserved a DVD copy of the video per standard practice, (2) plaintiff failed to present any evidence that the copy was of a lesser quality than the original, other than to allege that it was stored in a format that was inconvenient for enhancement, (3) defendants did not have control over the original security footage nor were they involved in its destruction, (4) recording over original footage occurred long before duty to preserve was triggered, and (5) there was no evidence beyond the fact of destruction itself that would support an inference that the original recording was unfavorable to defendants

Nature of Case: Excessive force claims in connection with plaintiff’s arrest

Electronic Data Involved: Hard drive containing original surveillance footage of plaintiff’s arrest

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

Tag:Data Preservation