Data Preservation – Page 62 – Electronic Discovery Law

Ashton v. Knight Transp., Inc., No. 3:09-CV-0759-B, 2011 WL 734282 (N.D. Tex. Feb. 22, 2011)

Dec 01 2011

Key Insight: Where, in a case arising from a fatal accident, the court determined that defendants? failure to preserve the tires of the involved truck and Qualcomm messages between the driver and the truck company was in bad faith and where that failure resulted in prejudice to the plaintiff, the court ordered that defendants? pleadings and defenses to liability be struck and, ?because defendants? misconduct led to the late discovery of a potential claim for punitive damages,? granted plaintiff leave to file an amended her complaint to add such a claim

Nature of Case: Hit and run

Electronic Data Involved: Qualcomm messages (“email type messages”)

Cedar Rapids Lodge & Suites, LLC v. JFS Dev., Inc., No. C09-0175, 2011 WL 4499259 (N.D. Iowa Sept. 27, 2011)

Dec 01 2011

Key Insight: Where plaintiffs alleged that examination of defendant?s laptop and other storage devices revealed evidence of spoliation and filed a motion for default judgment, the court reasoned that the evidence did not support a finding of intentional spoliation or bad faith, that the risk of prejudice to plaintiffs was small, that there was plenty of information for plaintiffs to utilize to pursue their claims, that public policy favored disposition on the merits, and that a less drastic sanction was available (namely a possible adverse inference instruction), and denied plaintiffs? motion; the recommendation of the Magistrate Judge was adopted by the District Court 2011 WL 5975127

Nature of Case: Claim for damages arising from property development

Electronic Data Involved: ESI

Xyience, Inc. v. Zyen, LLC (In re Xyience), Ch. 11 Case No. BK-S-08-10474-MKN, Adv. No. 09-1402-MKN, 2011 WL 5239666 (Bankr. D. Nev. Oct. 28, 2011)

Dec 01 2011

Key Insight: For ?discovery misconduct? including failing to issue a litigation hold; admitted deletion of documents; and failure to promptly search certain repositories for responsive information, including a computer utilized by an individual defendant at an unrelated corporation for which he was an officer (but which he used for matters unrelated to that corporation, including for correspondence related to the underlying lawsuits) and the computer of the same individual?s secretary (albeit at yet a third company which was also a defendant), the court ordered monetary sanctions ?to reimburse Plaintiff?s expenses costs, and reasonable attorney?s fees?

Nature of Case: Bankruptcy

Electronic Data Involved: ESI

LW. Matteson, Inc. v. Sevenson Envtl. Servs., Inc., No. 10-CV-168S, 2012 WL 5597653 (W.D. N.Y. Nov. 17, 2011)

Dec 01 2011

Key Insight: Although the allegedly spoliated information was likely relevant, court denied motion for spoliation sanctions where plaintiff?s pre-litigation letter expressing dissatisfaction with defendant?s work did not put defendants on notice that the at-issue data was relevant and should be preserved and where there was no evidence that defendant intended to destroy the data but rather that the information was lost because the computer on which it was stored did not save the information and instead deleted it before it began a new job; court also noted that defendants had provided the requested information upon plaintiff?s request prior to filing of litigation

Nature of Case: Breach of Contract

Electronic Data Involved: WinOPS data

Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

Dec 01 2011

Key Insight: Reasoning that the litigation holds were not discoverable but that the details surrounding them were, court ordered defendant to produce ?information surrounding the litigation hold? including when defendants learned of claims, when and to whom litigation hold instructions were sent, what categories of information were identified for preservation , etc.

Electronic Data Involved: Litigation holds

In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299 (N.D. Ga. 2011)

Dec 01 2011

Key Insight: Providing significant analysis of the issue of spoliation, court denied plaintiff?s motion for sanctions for defendant?s alleged failure to adequately preserve evidence where government?s investigation did not trigger a duty to preserve evidence as to the class action plaintiffs in this case and thus, no duty to preserve existed for purposes of the spoliation analysis; court also found that even where duty to preserve existed, plaintiffs also failed to establish prejudice resulting from the alleged failure to preserve and that defendant acted in bad faith by failing to prevent the loss of ESI pursuant to defendant?s usual document retention policies and the automatic functions of its server

Nature of Case: Class action related to alleged collusion in implementation baggage fees

Electronic Data Involved: Emails, ESI

Estate of Wilson v. Addison, 258 P.3d 410 (Mont. 2011)

Dec 01 2011

Key Insight: Where medical facility destroyed medication records in accordance with its records-retention policy, despite a pending claim, but where the destruction was in not bad faith or an attempt to shield plaintiff from the truth and where there was no showing of prejudice, District Court did not abuse its discretion in denying plaintiff?s request for sanctions

Nature of Case: Medical Malpractice

Electronic Data Involved: Medication Records

Peterson v. Seagate, 2011 WL 861488 (D. Minn. Jan 27, 2011)

Dec 01 2011

Key Insight: Where court found that plaintiffs? EEOC claims did not provide sufficient notice of the likelihood of a nationwide class action and where defendant destroyed the ESI of the former employees at issue in accordance with its usual document retention policies, court found that plaintiff had failed to show that information was destroyed in an effort to suppress the truth or that they had suffered any prejudice and declined to order sanctions

Nature of Case: Class action alleging age discrimination in employment

Electronic Data Involved: ESI of former employees

Jacobeit v. Rich Township H.S. Dist. 227, No. 09 CV 1924, 2011 WL 2039588 (N.D. Ill. May 25, 2011)

Dec 01 2011

Key Insight: For defendant?s delayed production of certain relevant documents, including emails, court granted plaintiff permission to re-depose certain witnesses but denied his request for evidentiary and exclusionary sanctions; court found defendant had breached its duty to preserve when it destroyed an audio tape of school board meeting pursuant to the District?s normal retention policy but that culpability and prejudice were not significant and ordered that plaintiff be allowed to question a certain deponent regarding the meeting, but no other sanctions; court found defendants breached duty of preservation as to certain emails, but that prejudice was minimal, and declined to allow forensic examination of the District?s computers, but ordered that defendants bear the reasonable costs of plaintiff?s motion and reply

Nature of Case: wrongful termination

Electronic Data Involved: Emails, audio tape of board meeting

Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634249 (E.D. Mich. Aug. 3, 2011); Flagg v. City of Detroit, No. 05-74253, 2011 WL 4634245 (E.D. Mich. Oct. 5, 2011)

Dec 01 2011

Key Insight: For the City of Detroit?s bad faith spoliation of emails, the court declined to impose terminating sanctions but imposed a permissive adverse inference; for the City?s and its attorneys? ?bad faith disregard of their discovery obligations and the orders of this Court? which led to the destruction of evidence (including failing to disseminate a legal hold notice and Corporation Counsel?s ?utter delinquen[ce] in his duty to see that his clients complied with Judge Rosen?s orders?), the court ordered the city and Corporation Counsel to split plaintiffs? reasonable fees and costs; in its analysis related to an adverse inference, the court adopted the analysis of Forest Labs. Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402 (E.D. Mich. 2009), which held that an adverse inference may be appropriate in some cases involving the negligent destruction of evidence (as opposed to bad faith, which some courts have held is necessary)

Nature of Case: Minor son of murder victim alleged that defendants conducted lax investigation and deliberately ignored or actively concealed material evidence

Electronic Data Involved: Emails

Tag:Data Preservation