Tag:Data Preservation

Key Insight: Court declined to impose spoliation sanctions where plaintiff was unable to support her allegation that additional relevant emails existed that were not produced and where, despite a violation of the duty to preserve ?personnel or employment records? pursuant to federal law, the only copies of relevant emails that were proven to exist had been provided to plaintiff and plaintiff provided no evidence that the emails (that were not preserved in violation of federal law) were destroyed in bad faith or other than in the normal course of business

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Key Insight: Where defendant?s failure to preserve potentially relevant surveillance video despite notice of plaintiff?s claim and a request for preservation was at least grossly negligent in light of the failure to implement a litigation hold, the delay between the request for the video and efforts to retrieve it, and the ?collective ignorance? of the people who should have know how the surveillance system worked (the time stamp was set for the wrong time zone resulting in collection of the wrong footage?a mistake that was not discovered until the relevant footage had been recorded over) and where the court determined that because of the grossly negligent conduct, ?relevance [was] determined as a matter of law,? the court ordered sanctions, including an adverse inference and payment of related costs and attorneys? fees

Nature of Case: Claims of discrimination on the basis of disability, national origin, and religion, assault, unlawful imprisonment, and denial of a reasonable accommodation for Plaintiff?s disability

Electronic Data Involved: Video Surveillance

Key Insight: Where Defendant reinstalled the operating system on his personal laptop two days after his first deposition (where he was informed a request for ESI would be forthcoming) claiming that he did so to ensure that he did not possess Plaintiff?s proprietary information, and where Defendant had previously deleted the information on a relevant flash drive, the court found Defendant had acted intentionally and that Plaintiff had been prejudiced by the loss and ordered an adverse inference allowing, but not requiring, the jury to infer that the deleted information was unfavorable to Defendant and also ordered Defendant to pay Plaintiff?s attorneys? fees and costs connected with bringing the motion for sanctions; court acknowledged applicability of agency law in determining whether to impose sanctions against a party for spoliation by its employees but declined to do so in the present case

Nature of Case: Breach of non-compete, misappropriation of trade secrets

Electronic Data Involved: ESI

Key Insight: Acknowledging the ?flexible and fact-specific? nature of the question of reasonable forseeability, the court addressed several possible triggers for the duty to preserve but ultimately determined that plaintiffs had not demonstrated that the duty to preserve was reasonably foreseeable at the time defendant implemented its document retention policy or that defendant should have reasonably anticipated litigation and therefore denied plaintiffs? motion for spoliation sanctions

Key Insight: Court did not err in denying plaintiff?s request for a spoliation instruction with respect to digital pictures taken of plaintiff which were deleted when a defendant (a police officer) connected the camera to his computer for uploading where there was no evidence ? to prove, or even suggest? that the officer intended to destroy the pictures and where ?a culpable state of mind? was a necessary element to be proven by a party seeking such sanctions

Nature of Case: Claims of unconstitutional seizure and use of excessive force

Electronic Data Involved: Digital photos

Key Insight: Court noted 2d circuit?s rejection of premise that failure to issue a litigation hold constitutes gross negligence and declined to impose an adverse inference but did impose monetary sanctions for individual?s failure to preserve her own handwritten notes upon finding that she acted in a negligent manner in preserving those notes; court denied motion for spoliation sanctions against ?Roosevelt Defendants? (the District and the Board) for failure to preserve audio tapes that were contaminated with lead and asbestos while in storage and thus discarded ?through no fault? of the Defendants and imposed no sanctions for late production of relevant information

Nature of Case: Employment discrimination

Electronic Data Involved: Audio tapes, handwritten notes, miscellaneous

Key Insight: Where plaintiff recycled the at-issue computer after being notified that Allstate disputed the effective date of her cancellation (which may have been discernible from examination of the computer) but before it was formally requested in discovery (almost two years later), court questioned whether a lay person would have known to keep her computer because of potential litigation when the computer was not the subject of her claim and declined to dismiss her claims but indicated that it would entertain further motions practice on the issue closer to trial

Nature of Case: Breach of contract, bad faith

Electronic Data Involved: Personal Computer