Data Preservation – Page 39 – Electronic Discovery Law

Mpala v. City of New Haven, No. 3:12-CV-01580 (VLB), 2014 WL 883892 (D. Conn. Mar. 6, 2014)

Dec 01 2014

Key Insight: Plaintiff’s motion for sanctions based on spoliation of evidence denied, where two surveillance videos that plaintiff claimed had been destroyed never actually existed, and relevance of the third video that may have existed was “tenuous at best”

Nature of Case: Pro se plaintiff alleged constitutional violations stemming from his suspension from the New Haven Public Library

Electronic Data Involved: Surveillance videos

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

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

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

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

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

Tag:Data Preservation