Data Preservation – Page 37 – Electronic Discovery Law

Ades v. Omni Hotels Mgmt. Corp., No. 2:13-cv-02468-CAS(MANx), 2014 WL 4627271 (C.D. Cal. Sep. 8, 2014)

Dec 01 2014

Key Insight: Considering plaintiffs? motion for class certification, court discussed Omni?s efforts to preserve call records and recordings and the apparently accidental loss of related call detail records and attendant search functionality; plaintiffs argued that any difficulties in identifying class members was due to Omni?s destruction of data that could have been used to search call recordings, and that it would unfair to allow such difficulties to prejudice class certification; court ultimately certified class and ruled that, to the extent Omni argued that ?identifying class members? may be difficult, those concerns were more properly addressed after class certification

Nature of Case: Putative class action alleging claims under the California Invasion of Privacy Act

Electronic Data Involved: Audio recordings of telephone calls and related data

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3894131 (D. Ariz. Aug. 8, 2014)

Dec 01 2014

Key Insight: Although court found City’s preservation efforts “plainly deficient,” as City did not notify its IT department to suspend automatic procedure for eliminating deleted emails after 30 days, nor did it instruct its IT department to assist key individuals in collecting and preserving relevant email or provide assistance in doing so from the legal department, court decline to impose case-dispositive sanctions against City because plaintiff did not discuss the bad faith standard nor show how it was satisfied, and loss of only one email did not constitute significant prejudice where plaintiff collected and presented good deal of evidence on same issue; court granted plaintiff?s motion to compel production of unredacted versions of two litigation hold letters sent by the City to its employees

Nature of Case: Fire Captain alleged claims of retaliation in violation of the First Amendment and state law claims for defamation and injunctive relief

Electronic Data Involved: Email

Luellen v. Hodge, No. 11-CV-6144P, 2014 WL 1315317 (W.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Although severe sanctions were not warranted where plaintiff did not establish bad faith or egregious gross negligence by defendant, or that he had been prejudiced by the loss of bank account records, lesser monetary sanctions to cover fees and costs of motion were appropriate given that defendant was negligent in failing to preserve the records

Nature of Case: RICO and related state law claims

Electronic Data Involved: Bank records

Knickerbocker v. Corinthian Colleges, No C12-1142JLR, 2014 WL 1356205 (W.D. Wash. Apr. 7, 2014)

Dec 01 2014

Key Insight: Court found that Defendant and its counsels? ?lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperation with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties? Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith? and ordered payment of Plaintiffs? attorneys fees ?incurred due to Corinthian?s bad faith discovery practices? and also ordered fines against Defendant ($25,000) and its counsel ($10,000)

Nature of Case: Employment Litigation (discrimination, hostile work environment)

Electronic Data Involved: ESI, including email, ESI on backup tapes

Tedeschi v. Kason Credit Corp, No. 3:10CV00612 DJS, 2014 WL 1491173 (D. Conn. Apr. 15, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for adverse inference based on defendant’s failure to preserve printouts from its computer system, finding that defendant did not have a duty to preserve printouts so long as the electronic files themselves were preserved

Nature of Case: Claims under Fair Debt Collection Practices Act

Electronic Data Involved: Printed fact sheets that showed collection activity maintained on defendant’s computer system

First Mariner Bank v. Resolution Law Group, P.C., No. MJG-12-1133, 2014 WL 1652550 (D. Md. Apr. 22, 2014)

Dec 01 2014

Key Insight: Recounting history of defendants? discovery misconduct, prior motions and orders, and finding that defendants? spoliation of evidence stored on individual defendant’s laptop computer and smartphone was willful and in bad faith and caused significant prejudice to plaintiff by eliminating the only identified source of defendants? business records, magistrate judge recommended that extreme sanction of judgment by default as to liability on all counts of the amended complaint be entered against defendants; magistrate further recommended that, pursuant to FRCP 55(b)(2), an evidentiary hearing be held to give plaintiff the opportunity to prove damages

Nature of Case: False advertising, unfair competition and defamation

Electronic Data Involved: ESI stored on laptop and smartphone

Savage v. City of Lewisburg, No. 1:10?0120, 2014 WL 6827329 (M.D. Tenn. Dec. 3, 2014 )

Dec 01 2014

Key Insight: District court said that where Defendant was under a duty to preserve audio recordings and should have taken steps to prevent their destruction; and where Defendant refused to produce payroll and promotion data ordered by the court; and where Defendant had not produced documents ordered by the court; Plaintiff would be permitted to argue adverse inferences to the jury and file an affidavit of reasonable costs and attorneys? fees in bringing its sanctions motion.

Nature of Case: Employment Discrimination

Electronic Data Involved: Audio recordings, payroll and promotion data, documents

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

Shlian v. Shoppers Food Warehouse Corp., No. BPG-13-954, 2014 WL 1320102 (D. Md. Mar. 31, 2014)

Dec 01 2014

Key Insight: Spoliation sanction of a negative inference jury instruction based on defendant?s failure to preserve CCTV tape that recorded plaintiff?s fall was not warranted, since defendant had no duty to preserve the tape because it had no reason to anticipate litigation, and defendant lacked the requisite mental state as the incident footage was taped over in the normal course of business and not through an intentional act

Nature of Case: Slip and fall personal injury

Electronic Data Involved: Closed-circuit TV tape

Volcan Group Inc. v. Omnipoint Commc?ns, Inc., 552 Fed. Appx. 644 (9th Cir. Jan. 9, 2014)

Dec 01 2014

Key Insight: District court did not abuse discretion in dismissal of Plaintiff?s breach of contract action where Plaintiff failed to preserve (i.e., spoliated) relevant materials and where the record also suggested that certain evidence had been falsified

Nature of Case: Breach of contract, promissory estoppel, unjust enrichment

Electronic Data Involved: ESI

Tag:Data Preservation