Data Preservation – Page 32 – Electronic Discovery Law

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

Siggers v. Campbell, No. 07-12495, 2014 WL 4978648 (E.D. Mich. Mar. 25, 2014)

Dec 01 2014

Key Insight: Notwithstanding that litigation hold was not put into place until more than four years after complaint was filed, court denied plaintiff?s motion for spoliation sanctions where there was no evidence that defendant deleted any documents or evidence, or acted with an intent to conceal or destroy evidence, there was no evidence that defendant routinely exchanged email correspondence about plaintiff with others, and the vigorous work of plaintiff?s appointed counsel led to only one responsive email being produced; plaintiff would be allowed to question defendant at trial about her failure to timely impose a litigation hold and about other matters related to plaintiff?s assertion that she must have had relevant email communications that no longer exist

Nature of Case: Pro se prisoner civil rights claims

Electronic Data Involved: Emails

Novick v. AXA Network, LLC, No. 07-CV-7767 (AKH)(KNF), 2014 WL 5364100 (S.D.N.Y. Oct. 22, 2014)

Dec 01 2014

Key Insight: Court found that defendants? repeated failure to properly search for, locate and produce audio recordings, their inability to account for the audio recordings? disappearance, and their conflicting representations to the court and plaintiff about the existence of the recordings, as well as their deliberate and unjustified failure to search for and locate email messages and their lack of explanation for the ?human error? they claimed was responsible for the delay, warranted a finding of bad faith conduct that prejudiced plaintiff; court declined to impose extreme sanction of striking defendants? pleadings and instead imposed an adverse inference jury instruction concerning the spoliated audio recordings, monetary sanctions representing plaintiff?s reasonable attorneys? fees and costs incurred in connection with motion, and the retaking of certain depositions at defendants? expense

Nature of Case: Breach of contract and various business torts

Electronic Data Involved: Audio recordings, email

Dorchester Fin. Holdings Corp v. Banco BRJ S.A., 11-CV-1529 (KMW) 2014 WL 7051380 (S.D.N.Y. Dec. 15, 2014)

Dec 01 2014

Key Insight: Trial court found Plaintiff committed spoliation when a computer containing key documents was destroyed. Court imposed sanctions of precluding evidence derived from the computer from being presented at trial and ordered Plaintiff to pay Defendant?s attorney fees and costs. Upon review, Court upheld the spoliation ruling but imposed a mandatory adverse inference instead of the preclusion order. Court agreed that Plaintiff had a duty to preserve, was culpable in the destruction of the evidence, and the data that was destroyed was relevant to the Defendant?s claims. The court further elaborated that Plaintiff?s duty to preserve did not end when the computer allegedly crashed, and that Plaintiff should have made reasonable efforts to recover the data it contained. Saying that the spoliation prejudiced the defendant in a ?severe way? that can only be corrected by a ?substantial sanction,? the Court found that a mandatory adverse inference was the best way to repair the damage to Defendant without being a ?harsh measure given the extent of Plaintiff?s reliance of the documents??

Nature of Case: Breach of Contract, Fraud

Electronic Data Involved: Contents of “crashed” laptop computer

Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 1393 (N.D. Ga. Dec. 2014)

Dec 01 2014

Key Insight: Where plaintiff was fired for failure to lock a gate?which he disputed?during the pendency of separate EEOC investigations into plaintiff?s charges of discrimination and where the at-issue manager claimed to have viewed footage confirming the gate was unlocked but failed to preserve it, the court determined that Defendant was under a duty to preserve (?due to an ongoing EEOC investigation during the applicable time period, Wal-Mart?s own investigation into the alleged employee misconduct including a review of the video footage, and litigation being reasonably foreseeable?), that plaintiff was prejudiced by the loss because neither the at-issue manager?s testimony or emails were equivalents for the video, and that plaintiff showed ?more than mere negligence? in the destruction, the court ordered an adverse inference creating a presumption that ?Wal-Mart?s stated reason for terminating Plaintiff was pretextual and that retaliation was the but-for cause of Plaintiff?s termination? and awarded attorney?s fees

Nature of Case: Employment litigation

Electronic Data Involved: Video surveillance footage

Taylor v. Shippers Transp. Express Inc., No. CV 13-02092 BRO (PLAx), 2014 WL 12560879 (C.D. Cal. Jul. 7, 2014)

Dec 01 2014

Key Insight: Court imposed sanctions, including an adverse inference and possible evidence preclusion (TBD after recovery efforts were exhausted), where Defendant failed to preserve its employees? text messages, including highly relevant text messages, by failing to implement a litigation hold and where despite Defendant?s attempts to recover the deleted information, the court deemed it ?very unlikely? that such efforts would result in full production; court also reasoned that even if all missing documents were produced, Plaintiffs would still be prejudiced in light of less time to review the evidence and prepare for trial

Nature of Case: Class action employment litigation

Electronic Data Involved: Text messages, ESI

Domanus v. Lewicki, —F.3d—, 2014 WL 408723 (7th Cir. Feb. 4, 2014)

Dec 01 2014

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records

Cognate Bioservices, Inc. v. Smith, Civil No. WDQ-13-1797, 2014 WL 988857 (D. Md. Mar. 12, 2014)

Dec 01 2014

Key Insight: Court denied motion for an order to preserve evidence, finding that defendant had complied with his duty to preserve — he gave opposing party notice that the laptop he used in connection with his employment at competitor would be returned after his resignation, provided the name and address of the person in possession of the laptop, and made efforts to ensure that relevant information on the laptop was not deleted

Nature of Case: Employer sued former employee and his new consulting firm for violations of Computer Fraud and Abuse Act, misappropriations of products, misappropriations of trade secrets

Electronic Data Involved: Laptop, computer passwords to former employer’s virtual private network and server computers

Riley v. City of Prescott, No. CV-11-08123-PCT-JAT, 2014 WL 641632 (D. Ariz. Feb. 19, 2014)

Dec 01 2014

Key Insight: Court applied five-part test to deny plaintiff’s motion for claim-dispositive sanctions but would allow reasonable attorneys’ fees and adverse inference instruction where city failed to suspend its 45-day retention policy for city employee email and defendant mayor apparently destroyed or failed to preserve relevant email in his private Gmail account, as numerous emails on which the mayor or his assistant were senders or recipients were discovered from third party sources, e.g., Google, Inc., but none were included in defendants’ production

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Tag:Data Preservation