Data Preservation – Page 53 – Electronic Discovery Law

Thermotek, Inc. v. Orthoflex, Inc., No. 3:11-cv-870-D (BF), 2015 WL 4138722 (N.D. Tex. July 7, 2012)

Dec 01 2012

Key Insight: For Defendants? discovery failures, including gross negligence in the identification and collection of potentially relevant documents (as a result of an individual defendant?s attempts to identify and collect responsive documents himself) and a ?cavalier attitude towards his discovery obligations? (as evidenced by the ?repeated failure? to conduct a proper document collection? and ?lack of candor regarding their document productions,? e.g., failure to indicate that certain produced emails were not ?the actual transmittal communications? that originally accompanied invoices), the court declined to impose severe sanctions absent evidence of bad faith – although the request was denied without prejudice – and ordered Defendants to pay reasonable expenses and fees incurred by Plaintiff that were attributable to Defendants? discovery misconduct, which Plaintiff represented could exceed $100,000

Nature of Case: Breach of contract, breach of warranty, unfair competition, fraud

Electronic Data Involved: ESI, including QUickbooks

Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 3779113 (E.D. Tenn. Aug. 31, 2012)

Dec 01 2012

Key Insight: Addressing post-judgment discovery issues, including plaintiff and receiver?s request to have certain hard drives imaged, court rejected defendants? claim that certain computers contained privileged information where those assets were sold to a third-party and thus any privilege was waived; court further ordered that personal computer and ipad belonging to an individual defendant should be imaged for preservation purposes, to be retained by the expert performing such imaging pending further orders from the court

Electronic Data Involved: Business and personal hard drives and ipad

In re Oil Spill by the Oil Rig ?Deepwater Horizon? In the Gulf of Mexico, MDL No. 2179, 2012 WL 174645 (E.D. La. Jan. 20. 2012)

Dec 01 2012

Key Insight: Court denied BP?s motion for spoliation sanctions for Halliburton?s alleged loss of information concerning ?post incident cement testing? where BP had not demonstrated prejudice and, upon Halliburton?s representation that the modeling was done on a particular computer that it would submit for third-party forensic examination to determine if the modeling could be located, the court ordered the parties to meet and confer to develop a protocol for examination with costs to be shared equally and reserved BP?s right to seek additional relief

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Computer modeling data/results

Pringle v. Adams, No. SACV 10-1656-JST (RZx), 2012 WL 1103939 (C.D. Cal. Mar. 30, 2012)

Dec 01 2012

Key Insight: In copyright infringement action where the creation date of certain evidence was highly relevant, the court granted defendant?s motion for terminating sanctions for plaintiff?s spoliation where plaintiff had a duty to preserve but nonetheless spoliated relevant evidence by sending a relevant hard drive for ?repairs? and where he indicated he no longer had possession of another hard drive, without explanation for its unavailability, and where the court found that defendants were prejudiced by the loss of the hard drives

Nature of Case: Copyright infringement

Electronic Data Involved: Hard drives containing information regarding creation date of allegedly infringed song

Illiana Surgery and Med. Ctr., No. 2:07 cv 3, 2012 WL 2049828 (N.D. Ind. June 5, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to designate a 30(b)(6) deponent to be deposed regarding defendant?s method of maintaining electronically stored information during the relevant time period where the information was relevant to plaintiff?s claims of bad faith and where defendant had produced requested information in a piecemeal fashion and repeatedly supplemented production, despite previously claiming all relevant information had been produced

Nature of Case: Breach of insurance contract and bad faith

Electronic Data Involved: Deponent to testify regarding document management practices

SEC v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012)

Dec 01 2012

Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order

Nature of Case: SEC investigation

Electronic Data Involved: ESI

Lab. Corp. of Am. v. United States, —Fed. Cl.—, 2012 WL 6861487 (Fed. Cl. Dec. 21, 2012)

Dec 01 2012

Key Insight: Where plaintiff sought sanctions for defendant?s automatic purge of contents from a relevant website following closure of bidding process, court found defendant was on notice of obligation to preserve by virtue of Federal Acquisition Regulations requiring preservation of ?all the contract documents associated with procurement,? that the United States had been negligent in failing to preserve the information, and that plaintiff was prejudiced and, focusing on the need to impose the least harsh sanction, ordered that defendant would be prohibited from relying upon any secondary evidence regarding what Plaintiff saw on the relevant website (the question of what Plaintiff saw on the website and therefore what Plaintiff knew was a major issue in the case)

Nature of Case: Pre-award bid protest

Electronic Data Involved: Contents of website used to submit bids

Domanus v. Lewicki, No. 08 C 4922, 2012 WL 3307364 (N.D. Ill. Aug. 13, 2012)

Dec 01 2012

Key Insight: Where defendant?s breached their duty to preserve by discarding a hard drive belonging to defendant in the midst of discovery and where their ?story? of what happened to the drive (including claims that it was taken to the Apple Store for repairs) did not ?add up?, the district court found the magistrate judge?s failure to find that defendant?s acted in bad faith ?clearly erroneous? and that a finding of bad faith would allow prejudice to be presumed such that allowing but not requiring the jury draw a negative inference was ?insufficient;? as a sanction, the district court ordered that defendants obtain all relevant emails from their email service providers and precluded defendants from using as evidence any of the documents culled from the drive ?before they destroyed it?

Electronic Data Involved: Hard drive

Dunn v. Mercedes Benz of Ft. Washington, Inc., No. 10-1662, 2012 WL 424984 (E.D. Pa. Feb. 10, 2012)

Dec 01 2012

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

Hudson v. AIH Receivable Mgmt. Servs., No. 10-2287-JAR-KGG, 2012 WL 1194329 (D. Kan. Mar. 14, 2012)

Dec 01 2012

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

Tag:Data Preservation