Data Preservation – Page 31 – Electronic Discovery Law

Hosch v. BAE Sys. Info. Solutions, Inc., No. 1:13-cv-00825 (AJT/TCB), 2014 WL 1681694 (E.D. Va. Apr. 24, 2014)

Dec 01 2014

Key Insight: Court ordered dismissal of Plaintiff?s claims with prejudice and payment of Defendant?s attorney?s fees and costs incurred for numerous discovery motions and forensic inspection of Plaintiff?s electronic devices for Plaintiff?s bad faith spoliation including defiance of the court?s discovery orders by refusing to submit certain devices and accounts for forensic inspection and by refusing to produce certain information and the destruction of ESI by wiping both his iPhone and Blackberry device, among other things

Nature of Case: Employment litigation (harassment, retaliation)

Electronic Data Involved: ESI, forensic inspection of devices (iPhone, Blackberry)and accounts

U.S. Legal Support, Inc. v. Hofioni, No. 2:13-cv-1770 LLK AC, 2014 WL 172336 (E.D. Cal. Jan. 15, 2014)

Dec 01 2014

Key Insight: Motion for spoliation sanctions denied without prejudice where plaintiff argued that individual defendants violated their duty to preserve by continuing to use their personal electronic devices after receiving notice of the action and not “quarantining” the devices pending forensic imaging, as plaintiff did not make a specific showing that spoliation had, in fact, occurred; testimony of plaintiff’s forensic experts was mere speculation as neither expert identified any actual loss of data nor provided any forensic analysis of the personal electronic devices at issue

Nature of Case: Misappropriation of trade secrets, breach of contract, unfair competition

Electronic Data Involved: ESI stored on individual defendants’ personal electronic devices

Quantlab Techs. Ltd. (BGI) v. Godlevsky, No. 4:09-cv-4039, 2014 WL 651944 (S.D. Tex. Feb. 19, 2014)

Dec 01 2014

Key Insight: After two-day evidentiary hearing, court analyzed conduct of various individuals and inferred bad faith as to each based on particular facts and concluded generally that lost evidence was moderately relevant and loss was moderately prejudicial; without stronger showing of bad faith or more definitive demonstration of relevance and prejudice, court declined to impose litigation-ending sanctions but would give spoliation instruction to be crafted at the same time as jury instructions

Nature of Case: Copyright infringement, breach of contract, misappropriation of trade secrets, fraud

Electronic Data Involved: Developer work stations, hard drives, flash drives, source code

Ogden v. All-State Career School, No. 2:13cv406, 2014 WL 1646934 (W.D. Pa. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court observed that ordering plaintiff to permit access to or produce complete copies of his social networking accounts would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable, and stated: ?Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home”; court ruled that defendant was only entitled to limited discovery of plaintiff’s communications, and set out particular steps that plaintiff must take to comply with defendant?s requests

Nature of Case: Hostile work environment and disparate treatment based on reverse gender discrimination and retaliation claims

Electronic Data Involved: Electronic communications made or affirmatively acknowledged by plaintiff on any social networking website (e.g., Twitter, Facebook, MySpace) during the period of alleged harassment

Lemon Juice v. Twitter, Inc., No. 502898/14, 2014 WL 4287049 (N.Y. Sup. Ct. Aug. 29, 2014)

Dec 01 2014

Key Insight: Where unknown person created Twitter account in plaintiff?s name and in violation of criminal court’s order took photo of child victim in court testifying against her tormentor and posted it to Twitter account, court ruled that plaintiff had met his burden of demonstrating a meritorious claim for intentional infliction of emotional distress and that the discovery sought from Twitter was needed in order to identify who should be named as a defendant, and that anonymous Twitter account creator?s behavior constituted an actionable tort and was not speech covered by First Amendment protection such that anonymity of creator had to yield to plaintiff?s need to redress the actionable wrong perpetrated against him; court directed Twitter to disclose basic subscriber information, records, internet protocol addresses and other similar information sufficient to identify owner of the bogus Twitter account and to preserve certain evidence

Nature of Case: Special proceeding pursuant to CPLR 3102(c) seeking an order directing Twitter to preserve certain evidence and to disclose certain information

Electronic Data Involved: Twitter subscriber information sufficient to identify the individual(s) who owned or operated particular Twitter account and logged into or “tweeted” on the account

Miller v. Experian Info. Solutions, Inc., No. 3:13-cv-90, 2014 WL 5513477 (S.D. Ohio Oct. 31, 2014)

Dec 01 2014

Key Insight: Noting that parties have no duty to create documents simply to comply with another party’s discovery request, court denied plaintiff’s motion seeking spoliation sanctions based on defendant’s alleged failure to preserve copies of plaintiff’s credit reports, as defendant provided third parties with only unformatted electronic data which the third party would then aggregate and format according to its needs — it did not create any hard copy documents in connection with the process; as such, defendant could not be sanctioned for failing to preserve documents it neither created nor possessed

Nature of Case: Fair Credit Reporting Act case

Electronic Data Involved: Copies of credit reports defendant provided to third parties during pendency of lawsuit

UMG Recording, Inc. v. Escape Media Group, Inc., No. 11 Civ. 8407, 2014 WL 5089743 (S.D.N.Y. Sept. 29, 2014)

Dec 01 2014

Key Insight: Court granted motion for sanctions for Defendants? bad faith deletion of relevant records related to uploading infringing materials to its music distribution service despite a duty to preserve and found that Plaintiffs were entitled to judgment as a matter of law that certain defendants illegally uploaded infringing materials; for culpable spoliation of source code, including by failing to preserve relevant data stored on a backup server when the lease on that server expired, court found that defendants were precluded from raising one of their substantive defenses to plaintiff?s motion for summary judgment

Nature of Case: Copyright infringement

Electronic Data Involved: ESI, source code

McCann v. Kennedy Univ. Hosp., Inc., Civil No. 12-1535 (JBS/JS), 2014 WL 282693 (D.N.J. Jan. 24, 2014)

Dec 01 2014

Key Insight: Applying Third Circuit’s four-factor test for evaluating spoliation claims, court denied plaintiff’s motion for sanctions, finding that plaintiff failed to establish that defendant acted in bad faith by allowing the tapes to be automatically taped over as a matter of routine, since there was no evidence that defendant’s employees knew or anticipated that plaintiff’s claims would require the retention and production of emergency room lobby videotape footage from the night plaintiff was treated

Nature of Case: Emergency Medical Treatment and Labor Act claims

Electronic Data Involved: Security videotapes of emergency room lobby

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL 1577814 (N.D. Tex. Apr. 21, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to meet the high burden of proof required to justify spoliation sanctions under Rule 37 and/or the court’s inherent powers, as plaintiff’s briefing was “entirely devoid of evidence, either direct or circumstantial, that would establish the bad faith required,” court denied plaintiff’s motion for sanctions and further noted that Rule 37(e) protected defendants from sanctions to the extent that the entries allegedly missing from defendants’ privilege log resulted from a server crash

Nature of Case: Retaliation claims

Electronic Data Involved: Email

Tag:Data Preservation