Data Preservation – Page 56 – Electronic Discovery Law

United States v. Univ. Health Servs., Inc., No. 1:07cv000054, 2011 WL 2559552 (W.D. Va. June 28, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendant?s failure to preserve video surveillance tape where the parties initially agreed that the tapes for the thirty days preceding the subpoena need not be saved, thus creating the understanding that tape recycling could proceed as usual, and where, as a result of this agreement, defendants could not be said to have failed to preserve in bad faith; court also declined to infer spoliation absent evidence that additional, relevant ESI existed that had not been produced

Nature of Case: Violation of False Claims Act and The VA Fraud Against Taxpayers Act

Electronic Data Involved: Video surveillance tape

Chen v. LW Restaurant, Inc., No. 10 CV 200 (ARR), 2011 WL 3420433 (E.D.N.Y. Aug. 3, 2011)

Dec 01 2011

Key Insight: Court imposed sanctions, including preclusion of evidence/witnesses, an adverse inference instruction (upon plaintiffs? request) and payment of attorney?s costs and fees for defendant?s discovery violations, including repeated failure to produce evidence despite court orders, and ?loss? of a flash drive and its contents under circumstances which supported a finding of gross negligence or intentional spoliation; court invited plaintiffs to seek sanctions against defense counsel, too, for counsel?s egregious violations of his duties, including failure to issue a litigation hold, failure to be candid regarding the loss of evidence, and failure to ensure compliance with client?s discovery obligations, among others

Nature of Case: Employment litigation (wages)

Electronic Data Involved: Flash drive containing original payroll records for purpose of analyzing metadata

United States ex rel Berglund v. Boeing Co., 835 F.Supp.2d 1020 (D. Or. Dec. 2011)

Dec 01 2011

Key Insight: Where plaintiff altered and deleted emails and discarded potentially relevant hard drives the court undertook a substantial analysis of the relevant legal standards surrounding spoliation and, upon consideration of those standards, imposed two monetary sanctions requiring the plaintiff to pay for the reasonable costs and fees arising from his failure to produce a hard drive as he had been directed to do by the court and to pay for Boeing?s costs ?directly connected with the investigation and discovery of the altered emails?; the court also dismissed, with prejudice, plaintiff?s claim of retaliation

Nature of Case: Violations of False Claims Act

Electronic Data Involved: Emails, hard drives

Liberman v. Fedex Ground Package Syst., Inc., 2011 WL 145474 (E.D.N.Y. Jan. 18, 2011)

Dec 01 2011

Key Insight: Where defendant negligently failed to preserve information that would have revealed whether a FedEx agent delivered packages to the address of the relevant accident on the day in question and where the presence of such a delivery person was disputed by FedEx, the court declined to grant default judgment but ordered an adverse inference establishing that a FedEx agent had delivered a package to the relevant address on the date of the accident

Nature of Case: Injury resulting from being hit by delivery handtruck loaded with boxes

Electronic Data Involved: ESI

E.I. Du Pont De Nemours & Co. v. Kolon Indus., Inc., No. 3 :09cv58, 2011 WL 1597528 (E.D. Va. Apr. 27, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions for plaintiff?s alleged deletion of relevant ESI upon finding that because plaintiff would not have known of the relevance of information in the identified custodians? custody at the time ESI was lost, there was no duty to preserve and thus no spoliation; as to ESI alleged to have been deleted while a duty to preserve existed, the court denied sanctions absent evidence of relevance or that defendant was prejudiced by the alleged loss

Nature of Case: Misappropriation of trade secrets, theft of business information, conspiracy, etc.

Electronic Data Involved: ESI, emails

Kermode v. Univ. of Miss. Med. Ctr., No. 3:09-CV-584-DPJ-FKB, 2011 WL 2619096 (S.D. Miss. July 1, 2011)

Dec 01 2011

Key Insight: Court denied motion for spoliation sanctions where plaintiff failed to establish the existence of the allegedly spoliated emails and where, if the emails had existed, they would have been automatically deleted prior to the trigger of defendant?s duty to preserve and thus would not have been lost in bad faith; court?s analysis included discussion of trigger of duty to preserve and reasoned that meetings between accused professor and his department head and/or program director regarding alleged unwanted interactions with student did not trigger university?s duty to preserve because there was no evidence to suggest that either the department head or program director should have reasonably anticipated litigation at that time (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212 for proposition that ?Merely because one or two employees contemplate the possibility that a fellow employee might sue does not generally impose a firm wide duty to-preserve.?)

Nature of Case: Wrongful termination

Electronic Data Involved: Emails

Britton v. Wal-Mart Stores East, L.P., No. 4:11cv32-RH/WCS, 2011 WL 3236189 (N.D. Fla. June 8, 2011)

Dec 01 2011

Key Insight: Where defendant?s employee(s) were found to have allowed the loss of relevant video surveillance tape, despite repeated notification of its relevance and requests for preservation, and to have done so intentionally and in bad faith, court declined to enter default judgment but precluded defendant?s presentation of certain defenses and ordered payment of attorney?s costs and fees related to the motion for sanctions and payment of half of such costs and fees related to a prior motion in which defendant?s dishonesty regarding the existence of the at issue vide resulted in costs to the plaintiffs

Nature of Case: Claims arising from alleged wrongful detention of teens for shoplifting

Electronic Data Involved: Video surveillance

Stepnes v. Ritschel, 663 F.3d 952 (8th Cir. 2011)

Dec 01 2011

Key Insight: Where ?severe spoliation sanctions, such as an adverse inference instruction, are only appropriate upon a showing of bad faith,? the circuit court affirmed the lower court?s denial of plaintiff?s motion for spoliation sanctions where there was no evidence that the accused party intentionally destroyed the relevant video tape ?or acted with bad faith or gross negligence in respect to it?

Nature of Case: False arrest, defamation

Electronic Data Involved: Videotape

E.E.O.C. v. Dillon Companies, Inc., —F. Supp. 2d—, 2011 WL 5834648 (D. Colo. Nov. 21, 2011)

Dec 01 2011

Key Insight: For defendant?s failure to preserve highly relevant surveillance footage in bad faith (as evidenced by the loss of three copies of the tape and the deliberate recording over of the master tape) which resulted in prejudice to the plaintiff, the court ordered an adverse inference instruction that the information would have been unfavorable to defendant and precluded defendant from offering the testimony of witnesses who viewed the footage prior to its loss as to what the footage depicted

Nature of Case: Employment discrimination/violation of Americans with Disabilities Act

Electronic Data Involved: Original and three copies of relevant surveillance footage

Apelbaum v. Networked Insights, Inc., 2011 WL 286125 (W.D. Wis. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court declined to impose sanctions for plaintiff?s failure to disable software set to automatically erase and write-over internet-related files whenever the browser closed where plaintiff asserted that he installed such software as a regular practice on all of his computers and where because of the automatic nature of the software, evidence was lost well before plaintiff filed his suit or defendant filed its countersuit; defendant would be allowed to present additional evidence of spoliation at trial and the court indicated its willingness to reconsider sanctions upon a showing that more than just internet-related files were deleted

Nature of Case: Breach of contract related to compensation

Electronic Data Involved: Laptop

Tag:Data Preservation