Tag:Data Preservation

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In re Plasma-Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666, 11 C 1468, 2013 WL 791432 (N.D. Ill. Mar. 4, 2013)
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Petition of John W. Danforth Group, Inc, No. 13-MC033S, 2013 WL 3324017 (W.D.N.Y. July 1, 2013)
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United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)
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Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 1196606 (S.D. Ohio)
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Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-CV-127 (LEK/DEP), 2013 WL 6992130 (N.D.N.Y. June 6, 2013)
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Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)
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Chi v. Loyola Univ. Med. Ctr., No. 10 C 6292, 2013 WL 422868 (N.D. Ill. Feb. 1, 2013)
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Altercare Inc. v. Clark, No. 12CA010211, 2013 WL 3356577 (Ohio Ct. App. June 28, 2013)
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Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)
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Dunbar v. Google, Inc., No. C 12-330, 2013 WL 1346597 (N.D. Cal. Apr. 2, 2013)

In re Plasma-Derivative Protein Therapies Antitrust Litig., Nos. 09 C 7666, 11 C 1468, 2013 WL 791432 (N.D. Ill. Mar. 4, 2013)

Key Insight: Where Plaintiffs argued that Defendant?s document and preservation efforts were inadequate and briefed ?at long length several document production errors, general complications and litigation hold mishandling,? including incorrect volume estimates of documents produced by search terms, date discrepancies in metadata, and corrupt emails (among others) the court noted that Plaintiffs had not obtained a court order against Defendant or attempted to show that it acted in bad faith and found that the allegations did not rise to a level justifying appointment of an outside third party ediscovery auditor, but granted Plaintiffs? motion for depositions of certain document custodians regarding document production issues; court denied motion to require Defendant to recover all documents deleted by certain custodians, including from backup tapes, where the court found that Defendant ?carried out its duty to preserve documents in a manner commensurate with the likely scope and role of [Defendant?s] participation in future litigation? and noted that reasonable efforts do not require the preservation of ?every single scrap of paper?

Nature of Case: Antitrust

Electronic Data Involved: ESI

Petition of John W. Danforth Group, Inc, No. 13-MC033S, 2013 WL 3324017 (W.D.N.Y. July 1, 2013)

Key Insight: Where petitioner sought to perpetuate evidence and an order of preservation pursuant to Rule 27 in light of an anticipated witness?s untruthfulness about his use of social media and refusal to turn over his personal mobile phone or to allow for a backup to be made absent a court order, the court declined to issue such an order where Rule 27 relief should be granted ?only in special circumstances to preserve evidence that would otherwise be lost? and where the petitioner?s ?generalized statements of concern? were insufficient to warrant pre-complaint intervention

Nature of Case: Pre-complaint order of preservation

Electronic Data Involved: Anticipated witness’s mobile device

United States v. Dish Network, LLC, No. 09-3073, 2013 WL 1749930 (C.D. Ill. Apr. 24, 2013)

Key Insight: Court imposed sanctions for several discovery violations: 1) for failing to provide Plaintiffs with information regarding its process for scrubbing calling lists against the do not call list and for providing a deponent with insufficient knowledge of the issue, court characterized defendant?s behavior as ?obstructive, contumacious, and willful? and precluded the use of evidence about the creation and scrubbing of telemarketing campaign lists; 2) for failing to preserve ESI related to a particular calling campaign despite a duty to preserve, court issue finding of fact that the campaign was conducted for commercial purposes; 3) for obstructive behavior related to whether it shared lead lists to retailers, including inaccurate statements and for failing to preserve information related to the same, court imposed adverse inference

Electronic Data Involved: ESI

Little Hocking Water Assn., Inc. v. E.I. Du Pont De Nemours & Co., No. 2:09-cv-1081, 2013 WL 1196606 (S.D. Ohio)

Key Insight: Where Defendant indicated that historical data was unavailable because it had been stored on magnetic tapes that could only be accessed with outdated technology that had been disassembled (VAX computer) and that the tapes had degraded and the information could not be retrieved, the court granted Plaintiff?s motion to compel discovery related to the ?failure to preserve or the destruction? of the at-issue data and ordered Defendant to produce a 30(b)(6) designee and to produce all relevant documents related to the ?preservation, failure to preserve and/or destruction? of the historical data and technology

Nature of Case: Groundwater contamination

Electronic Data Involved: Magnetic tapes, VAX computer

Dataflow, Inc. v. Peerless Ins. Co., No. 3:11-CV-127 (LEK/DEP), 2013 WL 6992130 (N.D.N.Y. June 6, 2013)

Key Insight: Failure to institute litigation hold, which resulted in automatic deletion of relevant e-mails as part of defendant’s system-wide upgrade, and defendant’s excessive delay in disclosing such facts, constituted gross negligence; magistrate judge recommended that plaintiff’s motion for sanctions be granted and that trial court issue and adverse inference instruction regarding the destroyed e-mails and award plaintiff its costs in bringing the motion

Nature of Case: Insurance coverage dispute

Electronic Data Involved: E-mail

Int?l Bus. Machs. Corp. v. BGC Partners, Inc., No. 10 Civ. 128(PAC), 2013 WL 1775373 (S.D.N.Y. Apr. 25, 2013)

Key Insight: Where plaintiff sought spoliation sanctions for defendant?s failure to collect information regarding its utilization of the at-issue software, the court refused to grant spoliation sanctions upon finding that defendant did not have an obligation to compile information related to its use of the at-issue software where such information was not typically collected in the usual course of business and where parties are only required to produce documents that exist and have no obligation to create documents to support their adversary?s theory of the case; where plaintiff sought spoliation sanctions for defendant?s migration from the at-issue software to another, the court declined to impose sanctions citing the fact that plaintiff had itself instructed defendant to destroy all copies of the at-issue software and that plaintiff failed to present any evidence that it had requested defendant halt its migration prior to filing a motion for sanctions

Electronic Data Involved: ESI

Chi v. Loyola Univ. Med. Ctr., No. 10 C 6292, 2013 WL 422868 (N.D. Ill. Feb. 1, 2013)

Key Insight: Upon a motion to clarify regarding Plaintiff?s prior motion for sanctions for defendant?s failure to preserve backup tapes, the court confirmed that Plaintiff could recover attorney?s fees and expenses ?reasonably incurred as a result of the failure to preserve backup tapes and the resulting discovery? (even where the follow-up discovery necessitated by the failure to preserve was not fruitful), but made clear that the recovery would be limited and that fees and expenses related to the filing and briefing of the motion for sanctions would not be awarded

Nature of Case: Defamation

Electronic Data Involved: Backup tapes

Altercare Inc. v. Clark, No. 12CA010211, 2013 WL 3356577 (Ohio Ct. App. June 28, 2013)

Key Insight: Where defendant failed to preserve plaintiff?s work computer at a time when litigation should have been reasonably foreseeable (because plaintiff?s employment ended under ?contentious? circumstances and because plaintiff was an attorney) and despite receipt of a specific written request for preservation, the trial court did not err in dismissing defendant?s claims against the plaintiff as a sanction

Nature of Case: Breach of employment contract and related claims

Electronic Data Involved: Work computer / computer hard drive

Process Am., Inc. v. Cynergy Holdings, LLC, No. 12 Civ. 772(BMC), 2013 WL 9447569 (E.D.N.Y. Sep. 23, 2013)

Key Insight: Where plaintiff did not institute a written litigation hold despite its duty to preserve having arisen when it threatened to sue defendants, and, instead of producing the original of a particular thumb drive as ordered by the court, plaintiff copied contents of original thumb drive onto another (used) thumb drive and then deleted irrelevant files from thumb drive before producing drive to defendant, court found plaintiff was merely negligent and did not act in bad faith or with an intention of destroying or withholding relevant evidence; court declined to impose terminating sanctions or an adverse inference instruction given that defendant did not demonstrate severe prejudice, but ordered plaintiff to reimburse defendant for one-half of its costs, including attorneys? fees and expert costs, that it incurred in connection with litigating the spoliation issue

Nature of Case: Lawsuit arising out of the collapse of a commercial relationship between the parties relating to credit card processing services

Electronic Data Involved: Thumb drive, email, spreadsheets

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