Data Preservation – Page 36 – Electronic Discovery Law

Klipsch Group, Inc. v. Big Box Store Ltd., No. 12 Civ. 6283 (VSB)(MHD), 2014 WL 904595 (S.D.N.Y. Mar. 4, 2014)

Dec 01 2014

Key Insight: Where defendants failed to issue litigation hold and their belated oral instructions were inadequate both in form and content, court authorized plaintiff to undertake a forensic investigation into state of defendants’ computer systems for purpose of determining likelihood of document destruction, likely nature and volume of any such destroyed documents, whether some or all of those documents may be recovered, and the status of sales information on the computers; court deferred ruling on plaintiff’s motion for adverse inference instruction or cost-shifting pending results of investigation

Nature of Case: Trademark infringement

Electronic Data Involved: E-mails and other ESI

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation

Nature of Case: Distributer sued former employees who formed competing company

Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices

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

Cusato v. Greenberg Traurig, LLP, No. B242696, 2014 WL 1349493 (Cal. Ct. App. Apr. 7, 2014) (unpublished)

Dec 01 2014

Key Insight: Terminating sanctions dismissing cross-complaint deemed proper where cross-complainants used “File Shredder” to delete gigabytes of data from their computers in violation of orders requiring cross-complainants to preserve computer data and to turn over their computers to computer expert; however, trial court instructed to reconsider monetary sanctions imposed against cross-complainants given that computer expert hired by plaintiff began its forensic examination of the computer media months before it was authorized to do so, in violation of the court’s orders

Nature of Case: LLC members asserted claims and cross-claims after failed business venture

Electronic Data Involved: Hard drives of individual cross-claimants

Miller v. Fed. Express Corp., No. 49A02-1307-PL-619, 2014 WL 1318698 (Ind. Ct. App. Apr. 3, 2014)

Dec 01 2014

Key Insight: Although there may have remained a genuine issue of material fact concerning spoliation based on employer’s failure to preserve contents of employee?s computer or make a complete archival backup of the contents when the computer was replaced, summary judgment in favor of the employers was properly granted since the employers were immune from the claims under Section 230(c) of the federal Communications Decency Act as providers of an interactive computer service (i.e., company network and access to internet)

Nature of Case: Individual alleged defamation and intentional infliction of emotional distress against employers of authors of anonymous comments posted regarding online article

Electronic Data Involved: Comments posted regarding online article; contents of computer used by author of comments

Emery v. Harris, No. 1:10-cv-01947-JLT (PC), 2014 WL 710957 (E.D. Cal. Feb. 21, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions because it was untimely and because plaintiff did not establish that defendant had control over the subject videotape or that defendant was on notice that litigation would ensue before the videotape was taped over

Nature of Case: Excessive use of force claims brought by pro se state prisoner

Electronic Data Involved: Videotape of prison yard area where altercation took place

Samuel v. United Corp., No. ST-12-CV-457, 2014 WL 2608839 (V.I. Super. Ct. May 21, 2014)

Dec 01 2014

Key Insight: Court declined to allow an adverse inference instruction as sanction for defendant’s alleged destruction of critical video footage that preceded her fall, and reiterated prior guidance from the Supreme Court of the Virgin Islands: “[U]pon reasonably foreseeable notice that evidence may be relevant to discovery, it is certainly not within the discretion of a store manager [or security officer] to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation, even where surveillance video does not clearly show the cause of the accident”; court commented that routinely preserving only a minute and a half of footage prior to an accident teeters on the edge of being unreasonable, and recommended preservation of at least five minutes of surveillance footage of the area prior to the accident

Nature of Case: Slip-and-fall

Electronic Data Involved: Surveillance video footage

Peerless Ind., Inc. v. Crimson AV LLC, No. 11 C 1768, 2014 WL 3497697 (N.D. Ill. July 14, 2014)

Dec 01 2014

Key Insight: District court judge adopted magistrate judge’s 2/27/2014 Report and Recommendations, except to the extent it found plaintiff had complied with prior discovery orders, and as sanction for failure to comply with orders, ordered plaintiff to pay defendants’ reasonable expenses and attorneys’ fees associated with briefing and hearings; judge further adopted in full magistrate judge’s 3/13/2014 Report and Recommendation which found that defendant failed to preserve or produce all documents it should have and recommended burden-shifting sanction rather than adverse inference instruction; judge awarded plaintiff its reasonable expenses and attorneys’ fees associated with its motion for sanctions

Nature of Case: Patent infringement and various violations of Illinois law

Electronic Data Involved: ESI

Tag:Data Preservation