Data Preservation – Page 37 – Electronic Discovery Law

Helget v. City of Hays, No. 13-2228-KHV-KGG, 2014 WL 1308893 (D. Kan. Mar. 31, 2014)

Dec 01 2014

Key Insight: Where defendant put ESI at issue by stating that plaintiff was fired, in part, for improper, personal use of the city’s computers, ESI relating to computer usage by plaintiff and certain others was relevant and city should have placed litigation hold on plaintiff’s immediate coworkers, those holding similar positions within the city, and the identified “key players”; court ordered city to bear the cost of forensic restoration

Nature of Case: Wrongful termination

Electronic Data Involved: E-mail, internet usage logs, and other ESI

Duluc v. AC & L Good Corp., 990 N.Y.S.2d 24 (N.Y. App. Div. 2014)

Dec 01 2014

Key Insight: Court affirmed denial of motion for sanctions where defendant preserved 84 seconds of surveillance footage in response a request to preserve footage or photos that ?depict the subject slip and fall accident? and where the remainder of the footage had been automatically overwritten before plaintiff requested broader preservation; court reasoned that: ?While it may have been a better practice to preserve any footage of the area from any camera for a period before and after the accident, that was not the request made to defendants, and it would unfair to defendant to penalize it for not anticipating plaintiff’s additional requests.?

Nature of Case: Personal injury / slip and fall

Electronic Data Involved: Video surveillance footage

In re Text Messaging Antitrust Litig., 46 F. Supp. 2d 788 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Court declined to impose sanctions against wireless carrier for employee’s deletion of particular email that referenced collusion, notwithstanding that deletion was intentional and done for the purpose of concealing the contents of the email, because record did not reflect that author of deleted email was in a position to have knowledge of or participate in any collusion between the wireless carriers, and thus plaintiffs could not show that missing email would have been adverse to wireless carrier

Nature of Case: Class action

Electronic Data Involved: Emails

EEOC v. Suntrust Bank, No. 8:12-cv-1325-T-33MAP, 2014 WL 1364982 (M.D. Fla. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court denied without prejudice EEOC?s motion for an adverse inference jury instruction, indicating it may consider this ruling at a later date if presented with further evidence tending to show bad faith conduct by SunTrust; court would permit the EEOC to introduce evidence at trial concerning SunTrust?s video surveillance system, SunTrust?s policies relating to use and preservation of video surveillance footage, and SunTrust?s failure to preserve video footage at issue, where Suntrust isolated and carefully reviewed tapes to investigate (and partly validate) one plaintiff?s claims, but then put that same footage back into circulation to be taped over and did not retain or preserve the footage

Nature of Case: Sexual harassment

Electronic Data Involved: Video surveillance footage from bank’s security cameras

Weitzman v. Maywood, Melrose Park, Broadview Sch. Dist. 89, No. 13 C 1228, 2014 WL 4269074 (N.D. Ill. Aug. 29, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff?s motion for an adverse inference instruction where school district destroyed clearly relevant recordings of school board?s closed session meetings by failing to suspend its usual document destruction policies after having notice of its duty to preserve, and where plaintiff suffered substantial prejudice as a result because she was deprived of perhaps the best evidence concerning school district?s real reasons for her termination; court further denied school district?s pending motion for summary judgment since, in light of the adverse inference against the school district, the material facts as to the district?s reasons for terminating plaintiff were, at a minimum, disputed, and in fact appeared to support plaintiff?s claim of discrimination

Nature of Case: Age Discrimination in Employment Act claim

Electronic Data Involved: Tape recordings of school board’s closed session meetings during which board members discussed the decision not to renew contracts of plaintiff and others

State Farm Mut. Auto. Ins. Co. v. Physiomatrix, Inc., No. 12-cv-11500, 2015 WL 1029540 (E.D. Mich. Mar. 3, 2014)

Dec 01 2014

Key Insight: Court found an individual defendant had control over deleted emails in an account located on a Comcast server and that the deletion of the emails was not ?merely coincidental to the winding-down of the business operations? of Defendant but rather was intentional, ?to prevent the discovery of the evidence therein?; reasoning that Plaintiff was not prevent from proving its most crucial allegations, the court declined to impose ?case-terminating? sanctions, but did order monetary sanctions against the individual defendant who controlled the emails and that Defendants? would bear the cost of a forensic search of their computers; notably, the inspection would apply to all defendants? computers, despite the court?s finding that one individual defendant had no control over the deleted emails and could not be held responsible for the deletion where the court explained (in footnote) that the non-spoliating defendant?s email account (used by his clinic) was registered to the spoliating defendant and where the non-spoliating defendant testified that he had not conducted a proper search of his computers

Electronic Data Involved: Emails on third party (Cloud) server

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317-EJD (HRL), 2014 WL 580290 (N.D. Cal. Feb. 13, 2014)

Dec 01 2014

Key Insight: Litigation was reasonably foreseeable so as to trigger a duty to preserve evidence when plaintiff first acquired patents with an eye toward litigation, although company was analyzing defendant’s technology and openly discussing litigation months earlier; however, because plaintiff waited 11 days after filing suit to implement a legal hold and there was evidence that potentially relevant emails were deleted, court imposed monetary sanctions instead of the more severe sanctions requested given absence of substantial prejudice to defendant and fact that plaintiff’s conscious disregard of its duty to preserve was motivated by cost-saving

Nature of Case: Patent infringement

Electronic Data Involved: E-mails

Cheng v. Lake Forest Assocs., No. CBD-13-1365, 2014 WL 2964082 (D. Md. June 30, 2014)

Dec 01 2014

Key Insight: Court reasoned that ?[c]aselaw demonstrates that a contractual relationship between two parties, which privies one party to access documents or information physically possessed by the other, can be sufficient to establish the requisite control necessary to compel production of a discovery-related document[]? and found that defendant had such control over video surveillance footage in the possession of a third party and granted Plaintiff?s motion to compel

Nature of Case: Personal injury (Slip & fall)

Electronic Data Involved: video surveillance

Regulatory Fundamentals Group LLC v. Governance Risk Mgmt. Compliance, LLC, No. 13 Civ. 2493(KBF), 2014 WL 3844796 (S.D.N.Y. Aug. 5, 2014)

Dec 01 2014

Key Insight: Court imposed terminating sanctions for willful and bad faith spoliation on the part of the defendant (who also happened to be a lawyer), including manual deletion of relevant emails, closing an email account maintained by a third party service provider for the purpose of ensuring the deletions and undertaking significant efforts to cover his tracks (including creating a false paper trail attempting to shift the blame to the service provider), and making misrepresentations to the court and opposing counsel, among other things

Nature of Case: Breach of contract, copyright infringement

Electronic Data Involved: ESI, emails, emails maintained by third party service provider

Siani v. State Univ. of New York at Farmingdale, No. 2:09-CV-0407 (JFB) (WDW), 2014 WL 1260718 (E.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied motion for spoliation sanctions based on defendant campus counsel?s deletion of emails, because defendants produced emails from other custodians who did not delete them, and plaintiff failed to show that other deleted emails were relevant to the action and favorable to him; counsel?s deletion of email was not done in bad faith, but was instead part of his normal practice, he placed a litigation hold on the actual decisionmakers but did not include himself because he had a limited, non-decisive role, and, as an attorney, considered his own communications to be privileged and work product and any email not covered by these doctrines would be preserved by the parties subject to the litigation hold, making his own preservation redundant; court further denied plaintiff?s motion to compel production of emails withheld on the basis of privilege after conducting an in camera review and finding defendants? objections to be well-taken

Nature of Case: Age Discrimination in Employment Act claims

Electronic Data Involved: Email

Tag:Data Preservation