Tag:Data Preservation

Key Insight: Where Plaintiff had a ?continuing business relationship? with Defendant despite the pending litigation and Defendant hosted Plaintiff?s emails on its servers, court rejected Plaintiff?s claim that Defendant?s changes to the email-archiving system resulted in a loss of Plaintiff?s emails where Plaintiff could provide no evidence of Defendant?s alleged access to Plaintiff?s emails and where Defendant credibly posited that Plaintiff had accidentally ?dragged and dropped? the missing email folders into the ?Notes? tab of the archived mailbox (where the emails were ultimately located); court also declined to impose sanctions for Defendant?s initial refusal to assist Plaintiff to locate the emails (that it had requested) where it had no duty to do so, and where despite that lack of duty, it nonetheless ultimately made a good faith, but unsuccessful, search effort; Defendant?s litigation hold on Plaintiff?s email account to retain copies of messages that anyone attempted to delete did not warrant sanctions, despite Plaintiff?s claim that the hold was ?worse than spoliation? because ?unlike evidence unlawfully destroyed by a party, evidence placed in a litigation hold is still available to the party implementing the litigation hold?

Nature of Case: Breach of contract

Electronic Data Involved: Emails

Key Insight: Where magistrate judge found that defendant violated his duty to preserve when he discarded his laptop after it allegedly crashed but declined to impose default judgement or an adverse inference absent evidence of bad faith, the district court upheld the decision not to impose default judgment but, reasoning that the credibility of defendant?s explanation was best left to the jury, held that the jury would be instructed that if it found bad faith, it could infer the computer?s contents were unfavorable

Nature of Case: Copyright infringement

Electronic Data Involved: Contents of hard drive

Key Insight: Court declined to impose spoliation sanctions for Township?s alleged failure to preserve relevant evidence where the Township believed that all disputes with Plaintiffs had been resolved, and thus had no anticipation of litigation or duty to preserve prior to the filing of the complaint, where there was no evidence that the at-issue evidence was destroyed after litigation had commenced, and where Plaintiffs failed to establish that defendant had acted with any ill motive or bad intent (bad faith) in failing to retain the documents plaintiff sought

Nature of Case: Constitutional claims related to land use

Electronic Data Involved: Emails, ESI

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

Key Insight: District court sustained Microsoft’s objection to special master’s order granting adverse inference instruction in light of finding that Microsoft’s failure to preserve source code was negligent rather than willful or grossly negligent; a finding of bad faith is required in order for an adverse inference instruction to be appropriate

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Key Insight: Concluding that trial court did not err in giving permissive adverse inference instruction where defendant failed to suspend its email retention policy (whereby all emails and related electronic documents were retained for only one month) at the point when patent infringement litigation became reasonably foreseeable, i.e., the earliest date asserted by defendant for work product protection in its privilege log, appellate court commented: “The destruction of documents in the course of preparation for litigation has no entitlement to judicial protection, and need not be concealed from the jury.”

Nature of Case: Patent infringement

Electronic Data Involved: Email