Data Preservation – Page 38 – Electronic Discovery Law

Painter v. Atwood, No. 2:12-cv-01215-JCM-RJJ, 2014 WL 1089694 (D. Nev. Mar. 18, 2014)

Dec 01 2014

Key Insight: Court granted defendants’ motion for sanctions in the form of an adverse inference instruction where, after she contemplated filing a lawsuit and retained counsel, plaintiff intentionally deleted Facebook comments that stated she enjoyed working for defendants; however, no sanctions were warranted for plaintiff’s deletion of text messages, as she was not on notice to preserve the texts at the time she deleted them (prior to leaving defendants’ employ)

Nature of Case: Former employee of dental practice sued for sexual harrassment, constructive discharge

Electronic Data Involved: Text messages and social media posts (Facebook comments and photographs)

Lopez v. Cate, No. 1:10-cv-01773-AWI-SKO, 2014 WL 3615480 (E.D. Cal. July 21, 2014)

Dec 01 2014

Key Insight: Court denied motion for preliminary injunction and preservation order, reasoning as to the request for a preservation order that defendants had issued a litigation hold letter and that plaintiff had not shown that such an order was needed due to ?any actual risk that specific evidence will be lost or destroyed during the pendency of this action?

Nature of Case: Civil rights action (pro se prisoner)

Electronic Data Involved: [F]iles and records, including e-files and intact meta data

Vicente v. City of Prescott, No. CV-11-08204-PCT-DGC, 2014 WL 3939277 (D. Ariz. Aug. 13, 2014)

Dec 01 2014

Key Insight: Where city notified key personnel to preserve relevant evidence but never instructed its IT department to suspend automatic procedure for eliminating deleted emails after 30 days or to assist key individuals in collecting and preserving relevant emails, city?s preservation efforts were “clearly deficient? but no sanctions were warranted as plaintiffs identified only one email that ultimately was lost as a result of defendants? inadequate preservation actions; court further granted plaintiffs? motion to compel production of unredacted versions of two litigation hold letters sent by the city to employees, and ruled on various other dispositive and discovery motions

Nature of Case: First Amendment, retaliation, defamation and related state law claims

Electronic Data Involved: Email

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

Tag:Data Preservation