Data Preservation – Page 38 – Electronic Discovery Law

Rodriguez v. City of New York, No. 114739/10, 2014 WL 2438436, May 29, 2014 (unpublished)

Dec 01 2014

Key Insight: Court granted plaintiff?s cross-motion for sanctions in the form of an adverse inference instruction, finding that it was particularly concerning that defendant Department of Education permitted surveillance video depicting at least some of the activity involved in litigation to be taped over where a police investigation immediately ensued, a Notice of Claim was filed by plaintiff, and the faculty of the school thought to view the video soon after the events occurred, and in the case of one teacher, prior to her deposition

Nature of Case: Student assaulted during school field trip sued for inadequate supervision and negligent hiring

Electronic Data Involved: Surveillance video

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-cv-1127 (LEK/DEP), 2014 WL 148685 (N.D.N.Y. Jan. 13, 2014)

Dec 01 2014

Key Insight: District court adopted magistrate judge?s recommendation (at 2013 WL 6992130) that plaintiff?s motion for adverse inference instruction be granted as sanction for defendant?s grossly negligent failure to preserve internal emails in violation of its own retention policy; court deferred ruling on the language of the jury instruction until the filing of pretrial memoranda so as to consider proposed jury instructions as a whole

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Internal emails

Small v. Univ. Med. Ctr. of S. Nev., No. 2:13-cv-00298-APG-PAL, 2014 WL 4079507 (D. Nev. Aug. 18, 2014)

Dec 01 2014

Key Insight: In a lengthy decision, the Special Master recounted chronology of “extraordinary misconduct and substantial and willful spoliation of relevant ESI” by defendant and observed: “The level of intentional destruction of evidence by UMC shocks the conscious.” The Special Master concluded that only case dispositive sanctions would fully protect plaintiffs from defendant’s willful discovery failures, and set out various recommendations including specific factual findings as to class certification and a rebuttable presumption regarding certain merit issues

Nature of Case: Class action alleging claims under Fair Labor Standards Act and Nevada state wage and hour laws

Electronic Data Involved: ESI, laptops, personal mobile phones and BlackBerry devices, BlackBerry server, databases, SMS text messages, etc.

Celestica Inc. Sec. Litig., No. 07 Civ. 312(GBD)(MHD), 2014 WL 1301881 (S.D.N.Y. Mar. 31, 2014)

Dec 01 2014

Key Insight: Mandatory adverse inference instruction was not warranted by former Chairman’s admitted deletion of e-mails after his retirement despite written document preservation instruction from corporate counsel at the outset of litigation, as defendants did not have requisite culpable state of mind and there was insufficient evidence of relevance or prejudice; instead, permissive adverse inference instruction was appropriate

Nature of Case: Securities class action

Electronic Data Involved: E-mails of defendant Celestica’s former Chairman of the Board

Woodlands Dev. LLC v. Regions Bank, 141 So.3d 357 (La. Ct. App. 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in dismissing Defendant?s case where there was no evidence that Defendant?s document retention policy (which gave employees discretion to determine which emails should be saved and deleted the remainder after 90days) was operated in bad faith and where the potentially relevant emails were already deleted by the time suit was filed, thus lessening (if not eliminating) the impact of the delay in issuing a litigation hold

Nature of Case: Declaratory judgment action brought by promissory note maker and guarantors against note holder

Electronic Data Involved: Email

Crawford v. City of New London, No. 3:11CV1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014)

Dec 01 2014

Key Insight: Spoliation sanctions were not appropriate where original footage on hard drive was recorded over in compliance with standard retention procedures, because: (1) defendants preserved a DVD copy of the video per standard practice, (2) plaintiff failed to present any evidence that the copy was of a lesser quality than the original, other than to allege that it was stored in a format that was inconvenient for enhancement, (3) defendants did not have control over the original security footage nor were they involved in its destruction, (4) recording over original footage occurred long before duty to preserve was triggered, and (5) there was no evidence beyond the fact of destruction itself that would support an inference that the original recording was unfavorable to defendants

Nature of Case: Excessive force claims in connection with plaintiff’s arrest

Electronic Data Involved: Hard drive containing original surveillance footage of plaintiff’s arrest

Knoderer v. State Farm Lloyds, No. 06-13-00027-CV, 2014 WL 4699136 (Tex. App. Sep. 19, 2014)

Dec 01 2014

Key Insight: Trial court erred in granting remarkable discovery sanctions of procedural “death penalty” together with over $1 million in sanctions against plaintiffs, as destroyed evidence did not go to heart of case, but was, instead, impeachment evidence; record did not reflect the required consideration by trial court of appropriate lesser sanctions or an explanation of why case was exceptional and lesser sanctions would be inadequate; and court wrongly awarded attorneys’ fees, expert fees, and costs for the entire case rather than those related only to the sanctionable conduct

Nature of Case: Insurance dispute

Electronic Data Involved: Digital photographs

United States v. Town of Colorado City, No. 3:12-cv-8123-HRH, 2014 WL 3724232 (D. Ariz. July 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for spoliation sanctions as plaintiff offered only “some slight evidence” that city acted with a culpable state of mind, most of the evidence did not support a conclusion that the city intentionally destroyed evidence, and any prejudice that plaintiff would suffer from not having the two dispatch calls was minimal

Nature of Case: Discrimination

Electronic Data Involved: Recordings of dispatch calls, police reports, officer meeting minutes

Fog Cap Acceptance, Inc. v. Verizon Bus. Network Servs., Inc., No. 3:11-CV-724-PK, 2014 WL 6064217 (D. Or. Nov. 12, 2014)

Dec 01 2014

Key Insight: Court concluded that, because plaintiff’s spoliation of evidence did not deprive defendant of any complete defense to any of plaintiff’s claims of liability, dismissal was inappropriate sanction; instead, appropriate sanction would be to instruct the jury that it could infer from plaintiff?s failure to preserve the hard drives and disks that they contained evidence favorable to defendant, and to exclude plaintiff?s proffered expert testimony regarding the likelihood that the unpreserved evidence contained usable software or source code; however, because court went on to grant defendant’s motion for summary judgment, it denied defendant’s motion for sanctions as moot

Nature of Case: Breach of contract, negligence, and violations of bailment

Electronic Data Involved: Source code, hard drives

Stewart v. Nucor Corp., No. 3:13-cv-0057-KGB, 2014 WL 12611316 (E.D. Ark. Dec. 8, 2014)

Dec 01 2014

Key Insight: Defendant moved to strike Plaintiffs answer, enter default judgement and give an adverse inference jury instruction as sanctions for alleged spoliation of video footage. The court held that destruction of the footage was prejudicial to Plaintiff, being the only recording of the accident. Defendant did not have an official retention policy and indicated the video at issue was overwritten ?within weeks of the accident through routine system operation.? However the court did not find Defendant acted in bad faith, and thus denied with prejudice Plaintiff?s motion to strike Defendant?s answer and enter default judgement. The court denied without prejudice Plaintiff?s request to strike the affirmative defense asserting Plaintiff?s fault as well as the request to prohibit Defendant from mentioning the tape/contents/employee statements regarding the tape during trial. Plaintiff may file a motion in limine to further pursue exclusion of evidence.

Electronic Data Involved: Video footage

Tag:Data Preservation