Data Preservation – Page 31 – Electronic Discovery Law

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

United States v. Town of Colorado City, No. 3:12-cv-8123-HRH, 2014 WL 3724232 (D. Ariz. July 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions as plaintiff offered only “some slight evidence” that city acted with a culpable state of mind, most of the evidence did not support a conclusion that the city intentionally destroyed evidence, and any prejudice that plaintiff would suffer from not having the two dispatch calls was minimal

Nature of Case: Discrimination

Electronic Data Involved: Recordings of dispatch calls, police reports, officer meeting minutes

Espejo v. Lockheed Martin Operations Support, Inc., No. 14-000095 HG-RLP, 2014 WL 6634492 (D. Haw. Nov. 21, 2014)

Dec 01 2014

Key Insight: Where plaintiff ran software to permanently erase all information on his computer then drilled a hole in his hard drive and threw it away, and completely erased and reformatted all data on recording device, and most of recordings produced by plaintiff had been edited, all at a time when plaintiff knew he had an obligation to preserve evidence, court found that plaintiff engaged in willful spoliation of highly relevant evidence, that plaintiff acted in bad faith, that defendants were severely prejudiced by the loss of evidence, that less drastic sanctions would not sufficiently compensate for plaintiff’s widespread destruction of evidence and that, given the extensive spoliation of relevant evidence by plaintiff, it would not be possible to fairly evaluate the case on the merits; court concluded that dismissal was the only appropriate sanction

Nature of Case: Retaliation and wrongful termination

Electronic Data Involved: Plaintiff’s personal computer, email, recordings made by plaintiff of his interactions with other employees

Ingrid & Isabel, LLC v. Baby Be Mine, LLC, No. 13-cv-01806, 2014 WL 1338480 (N.D. Cal. Apr. 1, 2014)

Dec 01 2014

Key Insight: Court denied issue preclusion sanctions without prejudice, ordering defendants to pay monetary sanctions of $20,444, produce all hard drives and any other electronic storage media subject to court-approved protocol for inspection, and provide plaintiff’s experts with access to defendants’ various e-mail, Amazon, Twitter, Facebook and eBay accounts, in light of serious concern as to whether defendants met their discovery obligations and real danger that evidence may be destroyed

Nature of Case: Breach of settlement agreement resolving trademark infringement and unfair competition claims

Electronic Data Involved: Defendants’ hard drives and various e-mail, Amazon, Twitter, Facebook and eBay accounts

Toppan Photomasks, Inc. v. Park, No. 13-cv-03323-MMC (JCS), 2014 WL 2567914 (N.D. Cal. May 29, 2014)

Dec 01 2014

Key Insight: Where defendant?s duty to preserve arose upon threat of litigation and where he was reminded of the obligation in correspondence with opposing counsel and then ordered by the court to preserve, the court found that the level of culpability rose with each indication and thus found that the defendant had failed to preserve ESI in bad faith but, absent evidence of the level of resulting prejudice (attempts to recover the deleted data had not yet been undertaken), declined to impose a an adverse inference but ordered monetary sanctions

Nature of Case: Trade secret, breach of contract

Electronic Data Involved: ESI on multiple devices

McDaniel v. Loyola Univ. Med. Center, No. 13-cv-06500, 2014 WL 1775685 (N.D. Ill. May 5, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to demonstrate that defendants would destroy discoverable information or that plaintiff would suffer irreparable harm without a preservation order, court denied motion for preservation order as superfluous and needlessly burdensome where defendants were fully apprised of the scope and gravity of their preservation duties and the consequences of breaching them

Nature of Case: Employment discrimination, breach of contract

Electronic Data Involved: Electronic data and e-mail

Metro. Life Ins. Co. v. Ogandzhanova, No. CV-12-00372-PHX-GMS, 2014 WL 2616523 (D. Ariz. June 12, 2014)

Dec 01 2014

Key Insight: Where defendant had testified regarding frequent use of computers but the two computers she produced after being ordered by the court to do so showed very little activity, court found that defendant had willfully failed to comply with court’s order to identify and provide the computers she used during the relevant time period; court further found that defendant failed to produce relevant documents within her control and applied five-factor test to impose sanctions in the form of a permissive adverse inference instruction and payment of plaintiff?s attorneys’ fees and expenses incurred in bringing the motion

Nature of Case: Disability insurance dispute

Electronic Data Involved: Hard drives, ESI

Am. Health, Inc. v. Chevere, No. 12-1678 (PG), 2014 WL 3955906 (PG), 2014 WL 3955906 (D.P.R. Aug. 14, 2014)

Dec 01 2014

Key Insight: Court found that entry of default was too harsh a punishment and that lesser sanction such as an adverse inference instruction was available and adequate to temper prejudice to plaintiffs resulting from individual defendant?s admitted deletion of e-mails containing plaintiff?s confidential information; court further ordered defendants to pay plaintiffs $2,500 for attorneys? fees no later than August 22, 2014

Nature of Case: Claims under the Computer Fraud and Abuse Act, Stored Wire and Electronic Communications and Transactional Records Access Act, and the Wire and Electronic Communications and Interception of Oral Communications Act

Electronic Data Involved: Email attachments

IQ Holdings, Inc. v. Stewart Title Guar. Co., No. 01-13-00952-CV, 2014 WL 6601148 (Tex. App. Nov. 20, 2014)

Dec 01 2014

Key Insight: Where hard copy closing file itself was destroyed, but defendants electronically preserved the closing file in two different storage systems, FileStor and SureClose, appellate court found that trial court acted within its discretion when it denied plaintiff?s motion for spoliation sanctions

Nature of Case: Real estate dispute

Electronic Data Involved: Closing file, title commitment

Tag:Data Preservation