Data Preservation – Page 51 – Electronic Discovery Law

Hunter v. State of Delaware, —A.3d—, 2012 WL 5349395 (Del. Oct. 26, 2012)

Dec 01 2012

Key Insight: Addressing the police department?s failure to preserve relevant surveillance footage of events at the police station following defendant?s arrest (by allowing it to be automatically recorded over), the Supreme Court of Delaware determined that the lost recording was not dispositive evidence and that the criminal trial was therefore not ?fundamentally unfair? and thus held that the trial court properly determined that a missing evidence instruction was a sufficient remedy and that fundamental fairness did not require a judgment on acquittal on the Assault and Resisting Arrest charges

Nature of Case: Criminal: Assault and Resisting Arrest

Electronic Data Involved: Video footage

YCB Int?l, Inc. v. UCF Trading Co., No. 09-CV-7221, 2012 WL 3069683 (N.D. Ill. June 12, 2012)

Dec 01 2012

Key Insight: Where plaintiffs failed to take appropriate steps to preserve information, including failing to suspend their document destruction policy and failing to issue a litigation hold, which resulted in the destruction of relevant documents (but, as the court concluded, not ESI), the court declined to impose drastic sanctions but recommended that the jury be instructed about the failure to preserve (but not instructed to draw any inferences based on that destruction) and recommended that plaintiffs be ordered to pay $1000 to defendant to ?partially compensate? it for attorneys? fees incurred by its motion and to pay $1000 to the court clerk

Nature of Case: Breach of contract

Electronic Data Involved: Hard copy inspection reports

915 Broadway Assocs. LLC v. Paul, Hastings Janofsky & Walker, LLP, No. 403124/08, 2012 WL 593075 (N.Y. Sup. Ct. Feb. 16, 2012)

Dec 01 2012

Key Insight: For egregious spoliation, including intentional deletions by key custodians, plaintiff?s failure to investigate storage practices or to ensure preservation, several custodians? failure to suspend auto-delete functions associated with their files, failure to suspend destruction of backup tapes, and replacement of relevant servers, the court ordered dismissal of plaintiff?s claims

Nature of Case: Legal malpractice

Electronic Data Involved: ESI

Borwick v. T-Mobil West Corp., No. 11-cv-01683-LTB-MEH, 2012 WL 3984745 (D. Colo. Sept. 11, 2012)

Dec 01 2012

Key Insight: Where defendant converted relevant audio files to .wav format and destroyed the originals pursuant to its document retention policy, the court declined to enter spoliation sanctions because the record did not establish bad faith reasoning (1) that defendant had provided an adequate explanation for plaintiff?s concern about gaps in the recordings, (2) that plaintiff should have requested the files in native format (which she did not) and that had she done so, defendant would have been on notice to preserve relevant files in their original format, and (3) the files were discarded pursuant to an established document retention policy; regarding bad faith, court stated, ?Only the bad faith loss or destruction of evidence will support either a judgment in favor of Plaintiff or the kind of adverse inference that Plaintiff seeks, i.e., that production of the original i360 recordings would have been unfavorable to Defendant?

Nature of Case: Employment discrimination

Electronic Data Involved: Audio files converted from original format

State v. Fox, No. 11CA3302, 2012 WL 4946436 (Ohio Ct. App. Oct. 16, 2012)

Dec 01 2012

Key Insight: ?[B]ecause appellant failed to show that the video contained materially exculpatory evidence or that the state acted in bad faith by failing to preserve the evidence, appellant did not demonstrate that his due process rights were violated. Thus, the trial court did not err by overruling his motion to dismiss.?

Nature of Case: Criminal: assault

Electronic Data Involved: Video surveillance footage

Phillip M. Adam & Assocs. V. Dell Computer Corp., No. 2012-1238, 2013 WL 1092719 (Fed. Cir. Mar. 18, 2012)

Dec 01 2012

Key Insight: Circuit court found that the district court erred in imposing an adverse inference for failure to preserve absent evidence of bad faith and thus reversed the district court?s imposition of an adverse inference sanction

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Danny Lynn Elec. V. Veolia Es Solid Waste, No. 2:09CV192-MHT, 2012 WL 786843 (M.D. Ala. Mar. 9, 2012)

Dec 01 2012

Key Insight: Court denied motion for spoliation sanctions where it was unclear that any spoliation had even occurred in light of defendants? backup system, where the court concluded that defendants had not acted in bad faith (but had instead ?expended great effort to insure that plaintiffs receive information from both their live and archived email system ??), and where the degree of prejudice was minimal (assuming spoliation occurred) in light of the significant other discovery that was produced

Electronic Data Involved: Email

Firestone v. Hawker Beechcraft Int. Serv. Co., No. 10-1404-JWL, 2012 WL 899270 (D. Kan. Mar. 16, 2012)

Dec 01 2012

Key Insight: Court denied defendant?s motion for sanctions resulting from plaintiff?s alleged spoliation of a number of USB devices allegedly attached to plaintiff?s work laptop where defendant failed to establish: 1) that plaintiff was responsible for attaching the devices, 2) that plaintiff removed or copied any proprietary information, or 3) that plaintiff then destroyed the devices while under a duty to preserve them

Nature of Case: Breach of employment contract

Electronic Data Involved: USB devices

Sloan Valve Co. v. Zurn Indus., Inc., No. 10-cv-204, 2012 WL 1886353 (N.D. Ill. May 23, 2012)

Dec 01 2012

Key Insight: Finding defendants? search efforts inadequate, court ordered discovery re-opened and that defendant conduct specific additional discovery, including additional searches on specific repositories, and provide specific information regarding how its search efforts were conducted and by whom; the court also provided a good discussion of preservation obligations, but ultimately concluded that additional information was necessary to make a determination regarding the reasonableness of defendants efforts; ultimately, court declined to impose drastic sanctions, but ordered additional discovery and that defendants pay monetary sanctions (attorneys? fees and cost)

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Burgess v. Fischer, No. 3:10-cv-00024, 2012 WL 3811863 (S.D. Ohio Sept. 4, 2012)

Dec 01 2012

Key Insight: Court granted defendants? motion for summary judgment as to plaintiff?s claim of spoliation related to video footage of the alleged excessive force where the tape was destroyed pursuant to the jail?s document retention policy after five days and plaintiff?s case was not filed for almost one year and where the court indicated there was no evidence that defendants knew litigation was probable; court did note in footnote, however, that five days is a short retention time and that ?a prudent jail would keep the video of a takedown incident for a longer period of time?

Nature of Case: Claims of excessive force against police officers

Electronic Data Involved: Video surveillance footage

Tag:Data Preservation