Tag:Data Preservation

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

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

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

Key Insight: Court denied motion for sanctions for alleged spoliation of one email where plaintiff failed to establish that the ?destruction of the email was anything but inadvertent or that any other email was deleted? or that the email constituted relevant evidence favorable to the defendants; court?s opinion indicated that defendants? use of oral instruction to preserve evidence was acceptable; court denied motion for sanctions related to defendants? failure to preserve and produce all runtime environments for allegedly infringing software program where defendants took efforts to preserve similar evidence with the belief that such preservation was sufficient and thus did not have a sufficiently capable state of mind to establish spoliation and where plaintiff failed to establish the relevance of the allegedly spoliated evidence to its claims

Nature of Case: Copyright infringement

Electronic Data Involved: Email, computer files related to development of allegedly infringing software

Key Insight: Where, following a helicopter crash, defendant hired an engineer to conduct relevant analysis, and where defendant failed to place that engineer under a litigation hold, court found that relevant information was deleted and that the evidence indicated a finding of ?a significant degree of culpability? and ordered an adverse inference and that defendant pay the moving party?s reasonably costs and attorneys? fees related to the spoliation motion

Nature of Case: Claims arising from helicopter crash

Electronic Data Involved: ESI related to engineering analysis

Key Insight: Magistrate Judge denied motion for spoliation sanctions where plaintiff?s possession of some emails that arguably should have been produced by defendant but were not was ?somewhat probative? but fell short of establishing that other relevant emails were created by defendant and then destroyed; upheld on appeal

Electronic Data Involved: Email