Data Preservation – Page 63 – Electronic Discovery Law

Velocity Press Inc. v. Key Bank, N.A., No. 2:09-CV-520 TS, 2011 WL 1584720 (D. Utah April 26, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion for sanctions where at-issue emails were deleted prior to when defendant?s duty to preserve attached; court?s analysis included consideration of when duty to preserve arose and found that some communications from plaintiff may have ?hinted at potential claims to certain employees? but did not ?directly threaten litigation? and that the duty to preserve was triggered later, upon receipt of the summons and complaint

Electronic Data Involved: Emails, ESI

Essenter v. Cumberland Farms, Inc., 2011 WL 124505 (N.D.N.Y. Jan. 14, 2011)

Dec 01 2011

Key Insight: Where a store employee attempted to copy the relevant surveillance footage but was unsuccessful and where the failure was not discovered until after the tape had been overwritten, the court found defendant?s loss of the relevant footage was negligent and imposed an adverse inference that the lost footage would have been unfavorable to the defendant

Nature of Case: Slip and fall

Electronic Data Involved: Video

Ingersoll v. Farmland Foods, Inc., No. 10-6046-CV-SJ-FJG, 2011 WL 1131129 (W.D. Mo. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court denied plaintiff?s motion to compel defendant?s production of its litigation hold where such letters are generally not discoverable absent evidence of spoliation; resolving dispute related to how to initially proceed with discovery of ESI, court approved defendant?s proposal to utilize search terms for the identification of potentially responsive information and to sample those results to determine the success of the terms; court also ordered that plaintiff be provided access to the search term ?hits? so that ?both sides may have an opportunity to determine the efficacy of the sampling.?

Nature of Case: Employment claims related to payment for ?donning and doffing?

Electronic Data Involved: ESI

Vieste v. Hill Redwood Dev., No. C-09-0424 JSW (MSR), 2011 WL 2198257 (N.D. Cal. June 6, 2011)

Dec 01 2011

Key Insight: Court ordered defendants to pay sanctions equal to ?reasonable attorneys? fees and costs incurred [by Plaintiffs] in bringing this motion? where defendants were ordered to provide a detailed explanation of their preservation and collection processes but instead submitted declarations which failed to answer basic questions, answered others with minimal information, and relied on conclusory statements; court denied motion for spoliation sanctions where, despite the court?s ?serious concerns? about a certain custodian?s preservation and collection efforts, spoliation was not established, and as to other specific evidence for which the evidence of spoliation was not clear, ordered that if it had not previously been produced, defendants would be barred from its use

Nature of Case: Brach of contract and fraud

Electronic Data Involved: Email, ESI

Kosher Sports Inc. v. Queens Ballpark Co., LLC, No. 10-CV-2618 (JBW), 2011 WL 3471508 (E.D.N.Y. Aug. 5, 2011)

Dec 01 2011

Key Insight: Where plaintiff and counsel failed to disclose the existence of relevant audio recordings (of secretly recorded conversations) and attempted to conceal their existence (including by false certifications pursuant to Rule 26(g)), but where defendant was allowed to cure the prejudice through additional discovery, court ordered plaintiff and counsel to bear joint responsibility for payment of defendant?s expenses related to the delay and concealment; for destruction of relevant audio recordings with a ?sufficiently culpable? state of mind, court imposed an adverse inference instruction

Nature of Case: Contract dispute

Electronic Data Involved: Audio recordings

Oce N. Amer., Inc. v, MCS Servs., Inc., No. WMN-10-0984, 2011 WL 6130542 (D. Md. Dec. 7, 2011)

Dec 01 2011

Key Insight: Where an employee of defendant used scrubbing software intended to delete illicit, non-responsive ESI from a lap top subject to court-ordered preservation and in the process also deleted potentially relevant ESI, the court found that such behavior was at least negligent and thus indicated that sanctions were warranted, but reserved judgment on what sanctions would be imposed until the severity of the resulting prejudice could be determined; where a second employee intentionally completed a Windows update that deleted Restore Points from the hard drive (also subject to court-ordered preservation), the court found the spoliation was at least negligent but again withheld imposition of a sanction pending a determination of the prejudice suffered; the court ordered defendants to pay plaintiff?s reasonable expenses in making the motion, including attorney?s fees

Nature of Case: Misappropriation of trade secrets, copyright infringement, etc.

Electronic Data Involved: ESI on employees’ hard drives

N.V.E. Inc. v. Palmeroni, No. 06-5455 (ES), 2011 WL 4407428 (D.N.J. Sept. 21, 2011)

Dec 01 2011

Key Insight: Court ordered adverse inference and monetary sanctions (in an amount to be established) where plaintiff was grossly negligent in its preservation, review and collection of documents, including by failing to issue a litigation hold and because of counsel?s failure to supervise the review and collection of documents, and where such failures resulted in the loss of relevant evidence; court denied request for preclusion of evidence where defendant failed to establish that plaintiff acted in bad faith; Motion for Reconsideration denied by District Judge 2012 WL 2020242 (D.N.J. June 5, 2012)

Chevron Corp. v. E-Tech Int., No. 10cv1146-IEG (WMc), 2011 WL 1898908 (S.D. Cal. May 19, 2011)

Dec 01 2011

Key Insight: The court denied defendant’s Motion for Reconsideration of the court?s order allowing forensic examination of the at issue hard drive by a neutral forensic examiner where defendant failed to meet the standard for reconsideration

Electronic Data Involved: Mirror image of hard drive

HR Tech., Inc. v. Imura Int. U.S.A., Inc., 2010 WL 4792388 (D. Kan. Nov. 17, 2010)

Dec 01 2010

Key Insight: Where plaintiff was required to produce its patent counsel?s relevant files and where its counsel retained hard copies of relevant emails but admitted to the destruction of electronic copies in accordance with the firm?s email policy, despite knowledge of the relevant dispute between plaintiff and defendant, the court denied a motion for sanctions where there was no evidence of bad faith in the destruction (because counsel acted pursuant to a ?general policy applying to all legal matters?) and where, because hard copies were preserved, there was no showing of prejudice to defendants

Nature of Case: Patent litigation

Electronic Data Involved: Emails

County of Erie v. Abbot Labs., Inc., 913 N.Y.S.2d 482 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to take steps to preserve potentially relevant documents until approximately three and one half years after the lawsuit was initiated and was thus grossly negligent, the court granted an adverse inference and monetary sanctions equal to defendant?s reasonable fess and costs of making the motion for sanctions

Nature of Case: Suit alleging that drug companies had inflated average wholesale price for Medicaid drugs

Electronic Data Involved: ESI

Tag:Data Preservation