Data Preservation – Page 33 – Electronic Discovery Law

Olney v. Job.com, No. 1:12-cv-01724-LJO-SKO, 2014 WL 5430350 (E.D. Cal. Oct. 24, 2014)

Dec 01 2014

Key Insight: Where plaintiff willfully and deliberately spoliated relevant data on his computer through use of deletion programs after the duty to preserve had been triggered, magistrate judge declined to impose sanction of dismissal given that the interests of expeditious resolution had not been thwarted by plaintiff’s conduct, litigation had not been unnecessarily protracted, management of the court’s docket had not been disrupted, and although the spoliation had prejudiced defendants in presenting a full defense, a strongly worded adverse inference instruction was an alternative, less severe sanction that would adequately address defendants’ harm; court set out text of adverse inference instruction to be given to the jury and awarded defendants their reasonable attorneys? fees

Nature of Case: Class action seeking statutory damages and injunctive relief for violations of the Telephone Consumer Protection Act

Electronic Data Involved: ESI on plaintiff’s computer hard drive

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

SCR-Tech LLC v. Evonik Energy Servs. LLC, No. 08 CVS 16632 (N.C. Super Ct. Dec. 31, 2014)

Dec 01 2014

Key Insight: Where Plaintiff failed to ensure the preservation of information underlying a highly relevant report regarding the examination of certain Defendants? computers over which the court determined it had ?de facto control? (the underlying information, including copies of the images were in the possession of the third party investigator), the court indicated it was not necessary to make an express finding regarding when litigation was contemplated and reasoned that based on the circumstances, Defendants were ?entitled to the inference? that the information was negligently lost during a time when Plaintiff had the duty to preserve it. Thus, the court found Defendants had presented sufficient evidence of spoliation to trigger Plaintiff?s obligation to rebut it and that Plaintiff had not. As a sanction, the court ordered a permissive adverse inference. Regarding Plaintiff?s request to compel Defendant?s restoration of backup tapes, the court identified the state?s relevant three-part test and ordered that if Plaintiff wanted restoration, it would be required to pay half o f the estimated costs up front, with further allocation to occur following analysis of the results of the search.

Electronic Data Involved: ESI, backup tapes

Robocast, Inc. v. Microsoft Corp., No. 10-1055-RGA, 2014 WL 789086 (D. Del. Feb. 25, 2014)

Dec 01 2014

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

Hawley v. Mphasis Corp., No. 12 Civ. 592(DAB)(JLC), 2014 WL 3610946 (S.D.N.Y. July 22, 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions for spoliation of contents of Plaintiff?s work laptop (by deleting the data and reissuing the computer to another employee) where despite the court?s finding that defendant had been grossly negligent in its failure to preserve, a presumption of relevance was not warranted and plaintiff failed to demonstrate that the lost documents would have supported his claim; regarding the destruction of plaintiff?s supervisor?s laptop (who had resigned), the court ordered an adverse inference where the court found that the failure to preserve was grossly negligent and where defendant?s conduct was sufficiently egregious to warrant a finding that the evidence was unfavorable to it (notably, the court indicated it ?[did] not matter? who had wiped the hard drive because defendant should have taken steps to preserve the data well in advance of the supervisor?s resignation); court ordered an adverse inference for defendant?s failure to produce certain evidence

Nature of Case: Employment discrimination

Electronic Data Involved: Contents of plaintiff’s laptop and supervisor’s laptop

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 748 F.3d 1354 (Fed. Cir. 2014)

Dec 01 2014

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

First Senior Fin. Group LLC v. ?Watchdog,? No. 12-cv-1247, 2014 WL 1327584 (E.D. Pa. Apr. 3, 2014)

Dec 01 2014

Key Insight: Court applied four-part test to determine that defendant acted intentionally and in bad faith to suppress or withhold relevant evidence, but because the prejudice to plaintiffs resulting from the spoliation appeared minimal and plaintiffs did not present any arguments as to how the spoliation prejudiced the ultimate merits of their case, court would only require defendant to pay the cost of the independent computer forensics expert and attorneys’ fees associated with plaintiffs’ motion for spoliation sanctions; court denied all other relief and sanctions sought by plaintiffs

Nature of Case: Defamation, tortious interference with business relationships, civil conspiracy, violations of the Lanham Act

Electronic Data Involved: ESI, computer hard drive

BancorpSouth Bank v. Kleinpeter Trace, LLC, No. 2013 CA 1396, 2014 WL 4925698 (La. Ct. App. Oct. 1, 2014)

Dec 01 2014

Key Insight: Appellate court concluded that trial court did not err in ordering that adverse inference instruction be given to jury as to contents of particular file where plaintiff had notice that file, which was within plaintiff?s control, was relevant to pending litigation, it attempted to refer to contents of file in support of motion for summary judgment, and plaintiff?s explanation for loss of the file was pretextual and not reasonable; appellate court reversed trial court?s decision to impose ultimate sanction of dismissal because record did not support conclusion that plaintiff willfully or in bad faith failed to comply with trial court?s orders, since dismissal rested on conduct that did not relate to court-ordered discovery and in most instances occurred prior to the first discovery order; appellate court vacated trial court?s award of attorneys? fees in favor of defendant and remanded the matter to the trial court for a determination of reasonable expenses because the basis for the award was unclear and the award appeared to include other fees and costs unrelated to the particular discovery motion for which they were awarded

Nature of Case: Suit to enforce obligations arising out of promissory notes

Electronic Data Involved: ESI, email, spreadsheets

Design Basics, LLC v. Carhart Lumber Co., No. 8:13CV125, 2014 WL 6669844 (D. Neb. Nov. 24, 2014)

Dec 01 2014

Key Insight: Where court had previously ruled that, absent an order of the court upon a showing of good cause or stipulation by the parties, a party from whom ESI has been requested shall not be required to search for responsive ESI: (a) from more than 10 key custodians, (b) that was created more than five years before the filing of the lawsuit, (c) from sources that are not reasonably accessible without undue burden or cost, or (d) for more than 160 hours, inclusive of time spent identifying potentially responsive ESI, collecting that ESI, searching that ESI and reviewing that ESI for responsiveness, confidentiality and privilege or work product, and plaintiff subsequently moved to compel additional computer imaging, court balanced Rule 26(b)(2)(B) considerations and, acknowledging that defendant had provided both electronic and paper copies of all blueprints, performed plaintiff?s requested search on the email copied from 11 computers, had invested many hours reviewing thousands of documents for privilege and had offered to produce the non-privileged emails to plaintiff?s counsel for his review and had provided suggested deposition dates for defendant?s president, and noting that plaintiff neither reviewed the email nor deposed anyone notwithstanding that case was more then 18 months old, concluded that requested discovery was not reasonable and proportional to the issues raised in the litigation, denied plaintiff?s motion to compel, granted defendant?s motion for protective order, and ordered parties to complete and file an appended Rule 26(f) Report

Nature of Case: Design misappropriation

Electronic Data Involved: Forensic images of every computer or data storage location used by defendant

Griffin v. New Prime Inc., No. 1:10-cv-01926-WSD, 2014 WL 212537 (N.D. Ga. Jan. 13, 2014)

Dec 01 2014

Key Insight: Plaintiffs’ motion for sanctions based on defendants’ alleged destruction of tractor-trailer’s black box data denied where data was lost when tow-truck operator, with the Georgia State Patrol’s consent, moved the tractor-trailer forward to separate it from another vehicle shortly after the accident, and plaintiffs offered no evidence to suggest that defendants knowingly moved the tractor-trailer forward or purposely failed to preserve the “black box” data

Nature of Case: Traffic accident

Electronic Data Involved: Black box data on tractor-trailer involved in accident

Tag:Data Preservation