Tag:Data Preservation

Key Insight: For Plaintiff?s failure to preserve potentially relevant emails and other ESI (including the failure to issue a litigation hold) despite its duty to preserve (which was triggered upon its discovery of alleged packaging discrepancies in diaper shipments delivered by the defendant), the court declined to preclude Plaintiff from offering certain evidence, noting the lack of bad faith, but ordered an adverse inference stating that Plaintiff negligently deleted relevant emails that would have been favorable to the defendant and for Plaintiff to pay Defendant?s attorney?s fees and costs associated with the motion for sanctions

Nature of Case: Claims related to packaging discrepancies in diapers delivered to Plaintiff that were intended for resale

Electronic Data Involved: ESI, email

Key Insight: Court imposed spoliation sanctions, including an adverse inference, for defendant?s deletion of a ?software library? despite a duty to preserve

Nature of Case: Copyright infringement

Electronic Data Involved: Software library

Key Insight: Where Defendant sought spoliation sanctions for Plaintiff?s failure to preserve communications and other evidence related to her job search (related to her mitigation of damages) and where Plaintiff?s counsel explained that many of the job-seeking activities were undertaken electronically and did not result in emails to be preserved, the court reasoned that Plaintiff?s degree of fault with respect to the online services was ?not large,? that allowing her to testify that she ?periodically? reviewed job lists and ?sometimes? clicked on the links was not ?seriously prejudicial,? and that the sanctions sought were disproportional and thus ordered that Plaintiff could not testify regarding specific job inquiries absent documentation of that inquiry and that she could not testify that she applied for one-hundred or more jobs, but indicated that Plaintiff would be allowed to testify that she looked at jobs periodically and sometimes clicked on the links and to testify regarding job applications for which she provided documentation

Nature of Case: Employment discrimination

Electronic Data Involved: Data related to online job searching

Key Insight: Court declined to impose spoliation sanctions for alleged failure to preserve ?the actual server and software system? allegedly utilized during the violation of the Computer Fraud and Abuse Act where the defendant did not establish the relevance of the server or software system

Nature of Case: Computer Fraud and Abuse Act

Electronic Data Involved: Server and software system utilized by auction company at time of alleged violation by Defendant

Key Insight: Where a defendant negligently ?lost? his cellular phone and thus the text messages on it despite a duty to preserve, the court ordered that plaintiffs would be permitted to introduce evidence at trial of defendants? failure to preserve and to argue whatever inference they hoped the jury would draw, but defendants would be allowed to present an explanation and argue that no adverse inference should be drawn

Nature of Case: Antitrust and related claims; theft of trade secrets; intentional interference with a prospective business

Electronic Data Involved: Text messages

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