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)

Slep-Tone Entm?t Corp. v. Granito, No. CV 12-298 TUC DCB, 2014 WL 65297 (D. Ariz. Jan. 8, 2014)

Dec 01 2014

Key Insight: Where defendant used special software to erase computer hard drives that allegedly contained infringing karaoke accompaniment tracks marked with plaintiffs’ registered trademarks, court determined that defendant acted willfully in destroying the evidence, which he knew to be especially relevant, and that his admitted spoliation of evidence severely impaired the plaintiffs’ ability to litigate the case; accordingly, court denied defendant?s motion for summary judgment based on lack of evidence, and granted summary judgment for plaintiffs on issue of liability, instructing that plaintiffs must still prove up damages

Nature of Case: Trademark and tradedress infringement

Electronic Data Involved: Unauthorized counterfeit duplicates of karaoke accompaniment tracks on hard drives

Alter v. Rocky Pt. Sch. Dist., No. 13-1100 (JS)(AKT), 2014 WL 4966119 (E.D.N.Y. Sep. 30, 2014)

Dec 01 2014

Key Insight: Notwithstanding court?s finding that defendants lost materials due to their negligence in failing to: (1) institute a litigation hold until more than two years after plaintiff filed her notice of claim, (2) discuss a litigation hold with named individual defendants and other key players, (3) preserve all ESI regarding plaintiff from named individual defendants and all key custodians in separate backup tapes or in some other medium, or (4) preserve work-related ESI utilized by key players on their personal computers or other devices, court declined to impose spoliation sanctions as it found no intent on the part of defendants to spoliate material evidence and plaintiff failed to meet burden of showing with some degree of factual detail that lost materials were relevant or helpful in prosecuting her claim; court further denied plaintiff?s request for appointment of independent forensic computer expert, but did impose $1,500 sanction against school district and its counsel given that court found merit to some of plaintiff?s arguments

Nature of Case: Workplace discrimination claims

Electronic Data Involved: ESI, emails

Yontz v. Dole Fresh Vegetables, Inc., No. 3:13-cv-066 2014 WL 5109741 (S.D.Ohio Oct.10, 2014)

Dec 01 2014

Key Insight: In this FMLA interference case, Defendant?s motion for summary judgment was denied, in part because the court found merit in Plaintiff?s spoliation claim. Defendant claimed there was no willful destruction of relevant email that was missing from their computer system. However, in deposition Defendant stated that ?there has not been any automatic deletion? from its system, and ?the only way that emails could have been deleted?would have been manually by an end user.? The Court found that to the extent email was missing a reasonable juror could find it was deleted by an employee. Additionally, the required element of a culpable state of mind was shown by Defendant?s failure to implement a litigation hold, which was a violation of their company policy. ?Where Dole?s own policies require retention, and there is testimony documents were not retained but manually deleted by the user, there is a genuine issue for the jury.?

Nature of Case: Employment Law

Electronic Data Involved: ESI

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”)

Tag:Data Preservation