Data Preservation – Page 40 – Electronic Discovery Law

Dewhurst v. Century Aluminum Co., No. 2:09-1546, 2014 WL 555164 (S.D. W. Va. Feb. 12, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion for spoliation sanctions based on union’s failure to preserve evidence, noting that union appeared to have been diligent in trying to gather up relevant documents once litigation commenced, there was no way to determine when the missing records were destroyed, and union was autonomous organization and none of the existing plaintiffs shouldered any blame for the union’s negligence

Nature of Case: Class action regarding defendant’s obligation to restore certain retiree healthcare benefits

Electronic Data Involved: E-mail and other ESI

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods

Nature of Case: Employment discrimination

Electronic Data Involved: Laptop; text messages and other ESI on mobile phone

Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL 1577814 (N.D. Tex. Apr. 21, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to meet the high burden of proof required to justify spoliation sanctions under Rule 37 and/or the court’s inherent powers, as plaintiff’s briefing was “entirely devoid of evidence, either direct or circumstantial, that would establish the bad faith required,” court denied plaintiff’s motion for sanctions and further noted that Rule 37(e) protected defendants from sanctions to the extent that the entries allegedly missing from defendants’ privilege log resulted from a server crash

Nature of Case: Retaliation claims

Electronic Data Involved: Email

Siggers v. Campbell, No. 07-12495, 2014 WL 4978648 (E.D. Mich. Mar. 25, 2014)

Dec 01 2014

Key Insight: Notwithstanding that litigation hold was not put into place until more than four years after complaint was filed, court denied plaintiff?s motion for spoliation sanctions where there was no evidence that defendant deleted any documents or evidence, or acted with an intent to conceal or destroy evidence, there was no evidence that defendant routinely exchanged email correspondence about plaintiff with others, and the vigorous work of plaintiff?s appointed counsel led to only one responsive email being produced; plaintiff would be allowed to question defendant at trial about her failure to timely impose a litigation hold and about other matters related to plaintiff?s assertion that she must have had relevant email communications that no longer exist

Nature of Case: Pro se prisoner civil rights claims

Electronic Data Involved: Emails

Schreane v. Beemon, 575 Fed. Appx. 486 (5th Cir. 2014)

Dec 01 2014

Key Insight: District court did not err in rejecting plaintiff?s request for spoliation inference based on erasure of surveillance tape where plaintiff failed to make the requisite showing of bad faith, as plaintiff offered no evidence that anyone who knew of his objections to the subject correctional officers? conduct was involved in the decision to record over the tape; court further noted that government produced what remained of requested tape (a few minutes of plaintiff?s assault), government provided affidavit of electronics technician who described prison?s general policy of automatically recording over surveillance video not marked for investigation within 15-30 days of recording, and there was no indication that any prison official even viewed the footage because it was not live-monitored 24 hours a day

Nature of Case: Prisoner brought Bivens action against correctional officer, alleging Eighth Amendment failure-to-protect claims

Electronic Data Involved: Surveillance tape

Jones v. Union Pac. R.R. Co., No. 12 C 771, 2014 WL 37843 (N.D. Ill. Jan. 6, 2014)

Dec 01 2014

Key Insight: Videotape of collision filmed from train was admissible, despite inability of defendant to produce the hard drive from which it originally was copied, where both eyewitness testimony which corroborated the footage and chain of custody evidence established its authenticity; no spoliation sanctions for reuse of hard drive where such reuse was a ?routine practice? for defendant and because plaintiff could not establish prejudice resulting from the loss of the hard drive (the video was available)

Nature of Case: Personal injury (train/car collision)

Electronic Data Involved: Original hard drive containing video footage

Cognate Bioservices, Inc. v. Smith, Civil No. WDQ-13-1797, 2014 WL 988857 (D. Md. Mar. 12, 2014)

Dec 01 2014

Key Insight: Court denied motion for an order to preserve evidence, finding that defendant had complied with his duty to preserve — he gave opposing party notice that the laptop he used in connection with his employment at competitor would be returned after his resignation, provided the name and address of the person in possession of the laptop, and made efforts to ensure that relevant information on the laptop was not deleted

Nature of Case: Employer sued former employee and his new consulting firm for violations of Computer Fraud and Abuse Act, misappropriations of products, misappropriations of trade secrets

Electronic Data Involved: Laptop, computer passwords to former employer’s virtual private network and server computers

Riley v. City of Prescott, No. CV-11-08123-PCT-JAT, 2014 WL 641632 (D. Ariz. Feb. 19, 2014)

Dec 01 2014

Key Insight: Court applied five-part test to deny plaintiff’s motion for claim-dispositive sanctions but would allow reasonable attorneys’ fees and adverse inference instruction where city failed to suspend its 45-day retention policy for city employee email and defendant mayor apparently destroyed or failed to preserve relevant email in his private Gmail account, as numerous emails on which the mayor or his assistant were senders or recipients were discovered from third party sources, e.g., Google, Inc., but none were included in defendants’ production

Nature of Case: Wrongful termination

Electronic Data Involved: Email

Schulman v. Saloon Beverage, Inc., No. 2:13-CV-193, 2014 WL 1516326 (D. Vt. Apr. 18, 2014)

Dec 01 2014

Key Insight: Where defendants cooperated with Vermont Department of Liquor Control investigation and with their insurer and supplied records to the apparent satisfaction of both, and produced facially complete 62-page check detail, but failed to preserve the original ESI after filing for bankruptcy and closing business, court denied plaintiffs’ motion for an adverse inference instruction since failure to preserve was not deliberate or in bad faith and plaintiffs’ claimed prejudice was based on conjecture; however, because plaintiffs were prejudiced to the extent they could not explore possibility of fabrication or tampering with printout of check details, court would allow evidence of destruction of ESI in its original format to be admitted at trial

Nature of Case: Dram Shop Act and common law claims alleging that defendants’ sale of beer to individual caused head-on collision between individual’s vehicle and plaintiffs’ vehicle

Electronic Data Involved: ESI on restaurant’s computers in its original format

Abcon Assocs., Inc. v. Haas & Najarian, No. CV 12-928(LDW)(AKT), 2014 WL 4981440 (E.D.N.Y. Oct. 6, 2014)

Dec 01 2014

Key Insight: Where there was no evidence that plaintiff ever instituted litigation hold, and documents were either discarded during plaintiff?s office move or lost due to server failure and/or corruption, court found that a fair reading of the record overall indicated that plaintiff?s failure to preserve was at most negligent and not in bad faith, and that no sanctions were warranted given that the alleged relevance of the missing documents appeared purely speculative and conclusory

Nature of Case: Breach of legal services agreement

Electronic Data Involved: Documents concerning plaintiff’s liabilities and financial condition

Tag:Data Preservation