Key Insight: Court found attorney?s duty to preserve was triggered upon receipt of correspondence terminating her representation but withheld judgment on issue of spoliation until hearing could be held
Nature of Case: Legal Malpractice
Electronic Data Involved: ESI, computers
Key Insight: Court declined to impose adverse inference for Defendant?s alleged failure to issue a litigation hold where Plaintiff failed to establish bad faith and failed to establish that ?critical or crucial evidence was destroyed??addressing the presence of bad faith, court noted that Defendants? email practices, i.e., that the individual defendant frequently deleted his emails and that once placed in the trash, they were automatically deleted after two weeks, resulted in Plaintiff?s claims gaining ?little traction? in light of Fed. R. Civ. P. 37(e); court declined to impose adverse inference for the alleged destruction of ?unidentified documents? where plaintiff ?failed to carry her burden of showing bad faith? and also failed to establish that she had ?suffered prejudice as a result of the missing documents?
Nature of Case: Employment discrimination; defamation; intentional infliction of emotional distress
Electronic Data Involved: Emails, ESI
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: Where, for defendant?s alleged spoliation, plaintiff sought to preclude defendants from asserting a legitimate non-discriminatory reason for her termination which would result in summary judgment in her favor, the court found that defendants had likely breached their duty to preserve ESI but that plaintiff failed to establish bad faith or substantial prejudice and thus denied plaintiff?s motion
Nature of Case: Employment Litigation – Sexual harassment
Electronic Data Involved: Notes maintained on work or home computer
Key Insight: Where employee ?at the heart of Plaintiff?s claims of discrimination and harassment? ?misunderstood the requirements of the litigation hold? and continued his practice of deleting all emails every day but claimed that he never received or erased any emails related to plaintiff?s lawsuit and that all of his sent emails were preserved (as were the emails sent to him from his managers because of their compliance with the litigation hold), court found the deletions were negligent and ordered an instruction that the emails were destroyed and would have been favorable to plaintiff?s case
Nature of Case: Employment litigation
Electronic Data Involved: Email
Key Insight: Court granted motion for sanctions and ordered an adverse inference for trial where defendant was grossly negligent in its destruction of relevant emails (as proven by Plaintiff?s receipt of relevant emails from third parties that should have been in defendant?s possession, for example, and defendant?s failure to dispute the existence of certain emails which were relevant to plaintiff?s claims but which were not produced); court found defendant was ?at least negligent? in its failure to preserve (and later found that defendant was grossly negligent) where the city had no formal email retention policy and instead relied on its employees to determine what to save: ?Because the City has effectively conceded that it had a duty to preserve the e-mails in question, its failure to maintain a formal e-mail retention policy was at least negligent.?
Nature of Case: Violation of constitutionally protected property rights based on Stop Work Order
Electronic Data Involved: ESI
Key Insight: Where Defendant threw laptop containing relevant evidence into the river following specific notice of her obligation to preserve and admitted her intent to destroy evidence, the court recommended entry of default judgment and that Defendant be required to pay Plaintiff?s reasonably attorneys? fees and costs incurred as a result of the spoliation
Nature of Case: Fraud
Electronic Data Involved: Laptop
Key Insight: Where it was undisputed that Defendant instructed a non-party witness to delete relevant emails on his computer and that the non-party complied, court granted in part plaintiff?s motion for sanctions and ordered that defendant and the non-party preserve all ESI going forward, that defendant and the non-party submit their computers for forensic examination to recover deleted emails and to gather native format versions of information previously produced ?as fixed images,? that defendant pay the cost of the forensic examinations, and that defendant bear plaintiffs? attorneys costs and fees for preparing the underlying motion
Electronic Data Involved: Emails, ESI
Key Insight: Court granted in part defendant?s motion for sanctions and ordered an adverse inference where the court determined plaintiff had a duty to preserve and that the deliberate wiping of his hard drive was in bad faith but declined to impose monetary sanctions or dismissal where plaintiff?s actions were not found to be sufficiently egregious, where plaintiff was forthcoming about the spoliation and his reasons (to protect personal and privileged information contained on the work-issued laptop), and where defendant had a substantial amount of the deleted material on backup tapes, etc. because of its backup practices
Nature of Case: Employment litigation
Electronic Data Involved: ESI from laptop
Key Insight: Where relevant documents were discovered upon forensic examination of a relevant hard drive and evidence indicated they had been modified, but not what the modifications were, the court reasoned that the documents had not been destroyed (because they were discovered on the hard drive) and that Plaintiffs did not dispute Defendant?s argument that the modifications could have been the result of merely saving the documents?without making other alterations?and thus declined to grant plaintiffs’ motion for spoliation sanctions
Nature of Case: Employment litigation
Electronic Data Involved: ESI
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