Data Preservation – Page 46 – Electronic Discovery Law

Lutalo v. Nat?l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125 (D. Colo. Mar. 28, 2013)

Dec 01 2013

Key Insight: In a case arising from a train passenger?s complaints regarding Plaintiff?s telephone conversation which the passenger found threatening and which resulted in Plaintiff?s arrest, the court found that the plaintiff had a duty to preserve the relevant cellular phone and that Defendants were prejudiced by its loss but declined to impose an adverse inference instruction for merely negligent spoliation (inadvertent loss) and instead barred Plaintiff from introducing evidence related to who he was talking to or what was said and allowed Defendants to present evidence regarding Plaintiff?s failure to preserve and argue ?whatever inference they hope the jury will draw?

Nature of Case: Claims arising from arrest where charges were later dismissed

Electronic Data Involved: Cellular phone

Swift Transp. Co. of Arizona, LLC v. Angulo, —F.3d—, 2013 WL 2928094 (8th Cir. June 17, 2013)

Dec 01 2013

Key Insight: Trial court did not abuse discretion in giving a spoliation instruction for a party?s failure to preserve satellite tracking information relevant to the whereabouts of its drivers at the time of the at-issue crash, where trial court was ?abundantly clear? that it believed the destruction was intentional, even if it did not specifically say ?bad faith? and where the victim/plaintiff was prejudiced by the failure to preserve; although the sanctioned party did produce a print out alleged to reflect the relevant satellite information, questions regarding the party?s veracity led the court to mistrust the accuracy of the document which contributed to the imposition of sanctions

Nature of Case: Malpractice related to underlying case involving automobile accident and resulting injuries

Electronic Data Involved: Satellite tracking data

Jackson v. Target Corp., No. 12-12190, 2013 WL 3771354 (E.D. Mich. July 28, 2013)

Dec 01 2013

Key Insight: Where Defendant preserved a portion of the relevant surveillance video following Plaintiff?s fall but, upon being ordered to preserve substantially more, could not comply because the video had been automatically overwritten by that time and could not be recovered, the court declined to impose an adverse inference absent evidence of a culpable mindset

Nature of Case: Premises liability (slip and fall)

Electronic Data Involved: Surveillance video

Gordon v. Dreamworks Animation SKG, Inc., No. 1:11-10255-JLT, 2013 WL 1292520 (D. Mass. Mar. 28, 2013)

Dec 01 2013

Key Insight: Court ordered spoliation sanctions for Plaintiff?s intentional destruction of materials related to his claim of copyright infringement at a time when he had a duty to preserve as evidenced by his actions to ?preserve? his work with the copyright office before the release of the allegedly infringing film (Kung Fu Panda) and his consultation with counsel; sanctions excluded evidence of Plaintiff?s 2008 copyright registration which was created with and relied upon evidence that had been destroyed

Nature of Case: Copyright Infringement

Electronic Data Involved: Hard copy documents, computer equipment and contents

Cartwright v. Scheels All Sports, Inc., —P.3d—, 2013 WL 3007776 (Mont. June 18, 2013)

Dec 01 2013

Key Insight: Trial court did not err in failing to sanction Defendant for destruction of Plaintiff?s emails and other data following his termination where Plaintiff failed to make any showing of ?an attempt to conceal evidence or bad faith? and where the emails were discarded pursuant to a ?pre-existing and routine practice? before Defendant had knowledge of potential litigation (pending administrative proceeding for unemployment benefits did not put Defendant on notice that Plaintiff?s files would become relevant to a civil proceeding)

Nature of Case: Wrongful discharge

Electronic Data Involved: Emails and other data on work computer

Reinsdorf v. Sketchers U.S.A.,Inc., — F. Supp. 2d —,2013 WL 3878685 (C.D. Cal. July 19, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought sanctions for alleged spoliation of documents from Defendant?s media share website but where the court found that many of the at-issue documents were not relevant and therefore were not subject to preservation and that the deletion of ?arguably relevant documents? was ?at most negligent,? the court found that Plaintiff was not prejudiced and denied his request for forensic examination of Defendant?s servers and an evidentiary hearing and also declined to re-open discovery; court?s analysis noted that the federal rules do not require perfection, but rather that a responding party conducts an objectively reasonable search for responsive materials

Nature of Case: Copyright infringement

Electronic Data Involved: ESI stored on Media share website

Davis v. Carmel Clay Schools, No. 1:11-cv-00771-SEB-MJD, 2013 WL 5487340 (S.D. Ind. Sep. 30, 2013)

Dec 01 2013

Key Insight: Where school did not keep records identifying the individuals who requested that hard drive of camera located inside school bus be removed, nor did school keep logs of who handled and/or viewed such hard drives once they were removed, and hard drive containing video footage of alleged assault was removed from subject school bus and then subsequently reinstalled on a different bus by persons unknown, resulting in overwriting of file containing segment that would have captured alleged assault, court denied plaintiffs’ motion for spoliation sanctions finding no evidence to support a conclusion that the act of reinserting the hard drive into another bus was undertaken in order to destroy adverse evidence as opposed to its being mere negligence in the handling of the hard drive, and no evidence to support conclusion that any employee of the school manually deleted the video files in an effort to destroy evidence; court would revisit issue if additional evidence came to light

Nature of Case: Title IX of the Education Amendments Act of 1972 claims that plaintiff was subject to unlawful peer-on-peer harassment that violated his constitutional rights, and that school failed to properly train its officials in recognizing and responding to sexual assault and harassment

Electronic Data Involved: Hard drive from video camera installed on school bus where incident allegedly occurred

Flagg v. City of Detroit, 715 F.3d 165 (6th Cit. 2013)

Dec 01 2013

Key Insight: Citing a court?s discretion in determining the strength of any adverse inference to be applied and noting that such a decision is determined on a case by case basis, the appellate court held that the District Court did not abuse its discretion in imposing a permissive rather than a non-rebuttable adverse inference for the defendants? bad faith spoliation of email

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Bradford Techs., Inc. v. NCV Software.com, No. C 11-04621 EDL, 2013 WL 4033840 (N.D. Cal. Aug. 6, 2013)

Dec 01 2013

Key Insight: Where Plaintiff was previously sanctioned for violating the stipulated protective order when Plaintiff?s President viewed Defendant?s source code; where Plaintiff?s president later deleted evidence related to his violation of the stipulated protective order despite a duty to preserve (arising from Defendant?s requests for preservation and two court orders requiring the same), made no effort to preserve the other contents of his laptop, and made ?inconsistent representations to the court?; and where a second employee claimed he was not notified of his preservation obligations and thus wiped the contents of his laptop (at a ?suspicious? time), including a relevant power point, the court declined to impose terminating sanctions absent a showing of prejudice and upon its determination that the orders requiring preservation were arguably ambiguous (?insofar as they required Plaintiff to preserve evidence while at the same time ordering Plaintiff to return discs and delete source code, as Defendants requested?) but did order a monetary award of reasonable expenses that the defendants incurred in taking expedited discovery regarding the source code violation and indicated that ?[t]he court may well allow? Plaintiff?s President?s credibility to be impeached at trial regarding his violation of the protective order

Nature of Case: Breach of contract, misappropriation of trade secrets

Electronic Data Involved: ESI, contents of laptop(s)

Magnuson v. Newman, No. 10 Civ. 6211(JMF), 2013 WL 5380387 (S.D.N.Y. Sep. 25, 2013)

Dec 01 2013

Key Insight: Although court observed there was little question that defendants’ disclosures had not included documents that were once in their possession that would be relevant to the case, as they had failed to produce any emails between and among themselves and any drafts of contracts relating to the issues of the lawsuit, court declined to impose discovery sanctions because plaintiffs failed to carry their burden of establishing that defendants had an obligation to preserve the evidence at the time it was destroyed; court rejected plaintiffs’ contention that defendants’ admitted failure to back up their computers or put a litigation hold in place constituted per se gross negligence, and stated that a party?s failure to adopt good preservation practices was one factor in the determination of whether discovery sanctions should issue

Nature of Case: Fair Labor Standards Act claims brought by a group of television production professionals and companies

Electronic Data Involved: Emails and documents

Tag:Data Preservation