Data Preservation – Page 43 – Electronic Discovery Law

EEOC v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166 (S.D. Ohio 2013)

Dec 01 2013

Key Insight: Defendant’s failure to establish a litigation hold and resulting loss of relevant data through routine purge was inexcusable and presented exceptional circumstances that removed such conduct from the protections provided by Rule 37(c); as sanction, court denied defendant’s motion for summary judgment which turned in part on skill login data, and would give permissive adverse inference instruction regarding the destroyed evidence at trial

Nature of Case: Sex discrimination claims

Electronic Data Involved: Skill login data

Clay v. Consol Penn. Coal Co., No. 5:12CV92, 2013 WL 4854746 (N.D. W. Va. Sep. 11, 2013)

Dec 01 2013

Key Insight: Where defendants were dilatory in participating in discovery and did not begin searching for ESI until plaintiff was on the brink of filing his second motion to compel, district court affirmed magistrate judge?s recommendation that plaintiff?s motion for default judgment be denied because there was no showing of bad faith on the part of defendants and prejudice to plaintiff could be alleviated through imposition of less drastic sanctions, such as allowing plaintiff to re-depose certain witnesses at defense expense, allowing plaintiff to exceed the deposition limit, and awarding plaintiff reasonable expenses (including attorneys’ fees) of the motion

Nature of Case: Race discrimination

Electronic Data Involved: ESI

Teller v. Dogge, No. 2:12-cv-00591-JCM-GWF, 2013 WL 5655984 (D. Nev. Oct. 16, 2013)

Dec 01 2013

Key Insight: Where defendant failed to produce subject videos or make his hard drive available for mirror imaging as required by court’s order, but plaintiff ultimately obtained the subject videos from Google, court denied plaintiff’s request for case-dispositive sanctions but would impose an adverse inference instruction in the form of a mandatory presumption in light of multiple warnings to defendant that sanctions would result if he did not produce the information and in light of other “violative and unmannered conduct” of defendant in the litigation

Nature of Case: Copyright infringement

Electronic Data Involved: Videos defendant posted to YouTube, instructional DVD and manual

Stirling v. St. Louis Cnty. Police Dept., No. 4:11CV01932, 2013 WL 2244638 (E.D. Mo. May 21, 2013)

Dec 01 2013

Key Insight: Where an individual defendant?s emails were deleted pursuant to the county?s ?routine system updates? and were therefore unavailable when requested, the court clarified that the duty to preserve arises ?when the party has notice that the evidence is relevant to litigation?most commonly when suit has already been filed ?? and NOT when a request is served and ordered defendants to search all available sources where the emails may still exist, including backup files, and to file a notice with the court advising it of such sources and that defendants must show cause why they should not be required to retrieve and produce such documents

Electronic Data Involved: Email

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2013 WL 458532 (E.D. Va. Feb. 6, 2013)

Dec 01 2013

Key Insight: For spoliation addressed in E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv58, 2011 WL 2966862 (E.D. Va. July 21, 2011), court awarded DuPont attorneys? fees in the amount of $2,428,733.90 and costs in the amount of $2,068,313.60; costs/expenses included those paid to three outside vendors, including for forensic analysis services and for providing contract attorneys to review and analyze documents

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI

Simms v. Deggeller Attractions, Inc., 2013 WL 49756 (W.D. Va. Jan. 2, 2013)

Dec 01 2013

Key Insight: In action arising from roller coaster accident, court denied motion to impose sanctions for failure to preserve potentially relevant photographs on roller coaster?s ?integrated photography system,? where there was no evidence presented explaining how long the photos were stored in the system (although Defendant ?appear[ed] to argue? that had been erased as early as two days after the accident) where there was no evidence of willful conduct, and where the prejudice was limited based on the availability of other evidence regarding whether other riders were wearing hats on the ride?an important question in the case

Nature of Case: Personal Injury (roller coaster accident)

Electronic Data Involved: Photographs

AMC Tech., LLC v. Cisco Sys., Inc., No. 11-cv-3403 PSG, 2013 WL 3733390 (N.D. Cal. July 15, 2013)

Dec 01 2013

Key Insight: Court denied Plaintiff?s motion for an adverse inference for Defendant?s deletion of the ESI belonging to a former employee where despite a general duty to preserve, the defendant ?could not have reasonably known? of the potential relevance of the at-issue ESI; where the disposal of ESI was pursuant to a routine deletion policy and other communications from the at-issue employee were produced from other custodians ?which suggests that Cisco did not act with a conscious disregard;? and where the relevance of the documents was tentative and the court was ?hard-pressed? to find that Plaintiff was prejudiced by the loss

Nature of Case: Claims related to software development and licensing agreement

Electronic Data Involved: ESI belonging to former employee

Anderson v. Sullivan, No. 1:07-cv-111-SJM, 2013 WL 4455602 (W.D. Pa. Aug. 16, 2013)

Dec 01 2013

Key Insight: After granting summary judgment in favor of all defendants, court retained ancillary jurisdiction to adjudicate plaintiff?s motion for spoliation sanctions; court conducted seven-day evidentiary hearing on the motion, ultimately rejecting plaintiff’s various claims of spoliation

Nature of Case: Pennsylvania Whistleblower Act claims

Electronic Data Involved: Email, computer hard drives

Mastr Adjustable Rate Mortgages Trust v. UBS Real Estate Secs. Inc., No. 12 Civ. 7322(HB)(JCF), 2013 WL 5745855 (S.D.N.Y. Oct. 23, 2013)

Dec 01 2013

Key Insight: Although court found that U.S. Bank was grossly negligent in failing to institute a litigation hold until eight months after its duty to preserve arose, court denied spoliation sanctions as there was no evidence of bad faith but positive evidence of good faith, and U.S. Bank presented persuasive evidence that no relevant documents were destroyed; court further ruled that litigation hold that U.S. Bank finally did impose was reasonable, as custodians were guided by both business people and counsel as to what to retain and counsel monitored compliance, gathering and reviewing relevant emails in the legal hold folders, substantive emails and attachments were printed out and retained separately and not subject to autodeletion policy

Nature of Case: Breach of contract, declaratory judgment

Electronic Data Involved: ESI

Harry Weiss, Inc. v. Moskowitz, — N.Y.S.2d —, 2013 WL 2341806 (N.Y. App. Ct. May 30, 2013)

Dec 01 2013

Key Insight: Sanction precluding plaintiff from presenting evidence or testimony in opposition to defendant?s defenses and counterclaims affirmed where plaintiff failed for two years to reveal that relevant ESI had been lost after it was allegedly printed; claimed that the relevant computer was ?broken? and had been discarded when defendant sought a forensic examination; and failed to issue a litigation hold; appellate court rejected contention that the disposal did not prejudice defendant because the files had been printed where that claim was contradicted at deposition and where hard copy did not contain metadata

Electronic Data Involved: ESI, hard drive/computer

Tag:Data Preservation