Data Preservation – Page 55 – Electronic Discovery Law

Colgate-Palmolive Co. v. Tandem Indus., 485 Fed. Appx. 516 (3d Cir. 2012)

Dec 01 2012

Key Insight: Considering Defendant?s argument for an adverse inference where his former employer failed to produce his former work laptop and files, the court noted that the ?undisputed evidence show[ed] that Colgate destroyed the data on the laptop shortly after Flower?s retirement,? and concluded that: ?When data is destroyed pursuant to normal recordkeeping practices (and in particular when it is destroyed in relation to a major event like an employee?s retirement), no adverse inference is warranted.?

Nature of Case: Breach of fiduciary duty

Electronic Data Involved: Laptop and its files

Vanliner Ins. Co. v. ABF Freight Syst., Inc., No. 5:11-cv-122-Oc-10TBS, 2012 WL 750743 (M.D. Fla. Mar. 8, 2012)

Dec 01 2012

Key Insight: Finding that the alleged spoliator had no notice of the potential relevance of the allegedly spoliated data and that the information?namely maintenance records?was available elsewhere, court concluded that he moving party failed to establish that the data at issue was ?crucial? to its case and denied motion for sanctions

Nature of Case: Claims arising from auto accident

Electronic Data Involved: Engine related data from Electronic Control Module (e.g., the speed of the tractor/trailer, the rotation of RPMs of the engine)

In the Matter of OSF Healthcare Sys., No. 9349, 2012 WL 1561035 (Mar. 27, 2012)

Dec 01 2012

Key Insight: Addressing when litigation was reasonably anticipated by Complaint Counsel (responsible for issuing the relevant Civil Investigative Demand), the court reasoned that anticipation of litigation was not triggered upon issuance of a ?second request? in connection with an ongoing investigation where the results of such investigations must first be analyzed to determine if an enforcement action is warranted and where the majority of investigations do not result in litigation; court denied respondent?s Motion to Compel

Nature of Case: FTC Civil Investigation

Electronic Data Involved: Relevant “communications”

Adkins v. Wolever, —F.3d—, 2012 WL 3711433 (6th Cir. Aug. 29, 2012)

Dec 01 2012

Key Insight: Where District Court held that because defendant, a prison guard, did not have control over the preservation of relevant surveillance footage there was no basis to establish his culpability for its loss and thus spoliation sanctions were not warranted, the appellate court acknowledged that other circuits had imposed sanctions for a prison?s loss of relevant footage but determined the case law did not require a finding of negligence for such loss and that, even if the appellate court were to disagree with the District Court?s determination, the conclusion was not ?clearly erroneous?; court spoke to concerns that this would provide carte blanche for prisons? destruction of such footage, but found that imposing a burden upon individual defendant?s to ensure that their employer (the prison) was preserving evidentiary records for every incident with a prisoner was not appropriate

Nature of Case: Action brought by prisoner for injury allegedly inflicted by prison guard

Electronic Data Involved: Surveillance footage

Haskins v. First Amer. Title Ins. Co., No. 10-5044 (RMB/JS), 2012 WL 5183908 (D.N.J. Oct. 18, 2012)

Dec 01 2012

Key Insight: Court found defendant had control over files in the possession of ?independent title agents? where contracts with those agents provided defendant the right to access those files; because ?control? was established for purposes of discovery, court ordered defendant to serve a litigation hold on present and former title agents with contracts similar to those examined by the court (which established control) who sold the at-issue title insurance within the relevant time frame

Nature of Case: Alleged scheme to overcharge for title insurance

Electronic Data Involved: ESI in possession of independent title agents

Genon Mid-Atlantic, LLC v. Stone & Webster, Inc., —F.R.D.—, 2012 WL 1414070 (S.D.N.Y. Apr. 20, 2012)

Dec 01 2012

Key Insight: Magistrate Judge found that plaintiff had ?practical ability? to obtain documents from third-party consultant, and thus ?control? of the documents for purposes of discovery, but declined to impose sanctions, despite finding that plaintiff had failed to issue a litigation hold letter and to ensure that its consultant?s records were being preserved, where investigation revealed that limited responsive documents were recovered from the consultant?s backup tapes and that only one was never produced and thus, plaintiff and its consultant had rebutted the suggestion that defendant was prejudiced; affirmed by District Court 2012 WL 1849101

Nature of Case: claims arising from construction contract

Electronic Data Involved: ESI

Estate of Carlock v. Williamson, No. 08-3075, 2012 WL 3878595 (C.D. Ill. Sept. 6, 2012)

Dec 01 2012

Key Insight: Court denied motion for sanctions and for appointment of special master absent evidence that allegedly relevant audio and video were lost in bad faith and where, despite ?concern? over loss of emails resulting from failure to timely suspend automatic deletions, the court ?[did] not find that relevant evidence was destroyed? and further indicated doubt that relevant emails existed; court further found that failure to suspend automatic deletions was merely negligent and not in bad faith; as to unsearched hard drives, court noted that the parties had already expended a large amount of time and money searching for relevant deleted evidence to no avail and that in light of doubts that relevant email ever existed, there was ?nothing to gain by searching those hard drives?

Nature of Case: Death of inmate while incarcerated

Electronic Data Involved: Audio, video, emails, hard drives

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

Medeva Pharma Suisse A.G. v. Roxane Labs., Inc., 2011 WL 310697 (D.N.J. Jan. 28, 2011)

Dec 01 2011

Key Insight: Despite acknowledging defendant?s failure to implement a litigation hold until at least 5 years after it first anticipated litigation, the court denied plaintiff?s motion for sanctions where the quantity and quality of the documents produced by defendant established that relevant information was ?diligently preserved? pursuant to defendant?s document retention policy and where plaintiff failed to establish that it had been prejudiced or that its ability to effectively prepare for trial had been impeded

Nature of Case: Hatch-Waxman patent infringement

Electronic Data Involved: ESI, emails

Tag:Data Preservation