Data Preservation – Page 64 – Electronic Discovery Law

Peal v. Lee, 933 N.E.2d 450 (Ill. Ct. App. 2010)

Dec 01 2010

Key Insight: On appeal from the trial court?s order of dismissal, where the evidence indicated that plaintiff repeatedly utilized scrubbing software to delete data subject to preservation and which the court had ordered the plaintiff to produce and likely discarded other relevant external drives, the appellate court considered the six factors contemplated by the trial court when determining the proper sanction, namely, ?surprise, prejudice, the type of evidence at issue, diligence, timeliness of objection, and good faith? and affirmed the sanction upon finding ?absolutely no evidence that the trial court abused its discretion?

Nature of Case: Defamation and related claims

Electronic Data Involved: ESI, contents of hard drives, external drives

Kahmout v. Vons Cos., Inc., 2010 WL 3751466 (Cal. Ct. App. Sept. 28, 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for spoliation sanctions for defendant?s alleged spoliation of surveillance video where in the case of an incident the surveillance video was to be copied from the hard drive it was stored on to a CD, but where there was insufficient evidence that such a CD was ever made or existed, and where plaintiff failed to contact defendant regarding her lawsuit until 5 months had passed – a period of time far longer than the video would have been preserved on the hard drive in the usual course of business

Nature of Case: Personal injury

Electronic Data Involved: Video surveillance footage

Prins v. Dir. of Revenue, 333 S.W.3d 17 (Mo. Ct. App. 2010)

Dec 01 2010

Key Insight: Where the trial court granted spoliation sanctions despite failing to find that the loss was intentional or in bad faith (where the officer failed to preserve the relevant video footage as the result of failing to mark the right ?checkbox? in the system) and where Missouri law requires ?evidence of intentional destruction? or ?evidence that the spoliator destroyed the evidence ?under circumstances manifesting fraud, deceit, or bad faith?, the appellate court reversed the judgment of the trial court and remanded for a new hearing

Nature of Case: DUI

Electronic Data Involved: Video footage of defendant’s stop and arrest

Oce N. Am., Inc. v. Brazeau, 2010 WL 5033310 (N.D. Ill. Mar. 18, 2010)

Dec 01 2010

Key Insight: Court rejected objections to the Magistrate Judge?s recommendation that plaintiff?s motion for a preliminary injunction be denied and, addressing plaintiff?s assertions that an evidentiary gap regarding defendant?s alleged misappropriation of information could be filled by adverse inference resulting from defendant?s failure to preserve instant messages, declined to impose such an inference where defendant mistakenly believe that the messages were automatically preserved and, upon learning otherwise, made changes to preserve going forward and thus plaintiffs were unable to show a culpable state of mind and where the alleged spoliation caused little harm in light of the availability of other evidence

Nature of Case: Breach of non-competition agreement

Electronic Data Involved: Instant messages

Partminer Worldwide, Inc. v. Siliconexpert Techs., Inc., No. 09-cv-00586-MSK-MJW, 2011 WL 587971 (D. Colo. Feb. 9, 2010)

Dec 01 2010

Key Insight: District Court declined to adopt recommendation for spoliation sanctions arising from defendant?s alleged bad faith destruction of a relevant email where the email was produced after the recommendation was made and thus ameliorated the need for finding of spoliation; in light of deficiencies revealed in defendants? search for responsive materials, court adopted recommendation that a forensic search of defendants? hard drives be undertaken, but reduced the scope of that search from all employees to those who ?received directly or indirectly, the customer information? at issue

Nature of Case: Claims arising from former employee?s alleged sharing of confidential information

Electronic Data Involved: Email

IMRA Am., Inc. v. IPG Photonics Corp., 2010 WL 2812999 (E.D. Mich. July 15, 2010)

Dec 01 2010

Key Insight: Court imposed spoliation sanction and precluded plaintiff and its expert from offering opinion or evidence on any simulations relied upon in forming the basis of plaintiff?s Second Infringement Report where the input data upon which the simulations relied were lost in a computer crash and where plaintiff failed to timely disclose the destruction

Electronic Data Involved: Input data forming basis for expert’s report

Whitby v. Chertoff, 2010 WL 431974 (M.D. Ga. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for sanctions for a myriad of alleged violations, including failure to preserve emails and failure to adequately search for responsive ESI, where plaintiff failed to offer sufficient evidence of such violations and where the court found defendant?s search was reasonable; court ordered defendant to show cause why it failed to produce emails from certain supervisors in response to the court?s prior order where plaintiff offered evidence that such emails existed

Nature of Case: Employment Discrimination

Electronic Data Involved: ESI, email

Maggette v. BL Dev. Corp., 2010 WL 2010816 (N.D. Miss. May 17, 2010)

Dec 01 2010

Key Insight: For defendant?s egregious discovery violations uncovered with the assistance of a special master, including failing to adequately search for responsive materials and lying to the court about such searching and other, related topics, court indicated likelihood that it would find as a matter of law that an agency relationship existed between the offending defendant and another entity implicated in the underlying accident claims but, recognizing that ?responsibility for punishing BL for its discovery violations lies with the court, rather than the jury? declined to order an adverse inference and instead set the matter for hearing where proper sanctions and the egregious conduct of counsel would be discussed before a final determination was made

Nature of Case: Claims arising from bus accident

Electronic Data Involved: ESI, hard copy

Grubb v. Board of Trustees of the Univ. of Illinois, 2010 WL 3075517 (N.D. Ill. Aug. 4, 2010)

Dec 01 2010

Key Insight: Where plaintiff?s ?workaday use? of the laptop at issue unknowingly resulted in the destruction of usable data and where the laptop did not belong to the plaintiff, was later returned to its third-party owner, and was then wiped clean, the court denied defendant?s motion for sanctions against plaintiff upon finding that there was insufficient evidence of plaintiff?s control of the laptop or that he knew the laptop would be wiped and, more importantly, where the court found that plaintiff?s destruction of data by using the laptop occurred before he knew it would have such a result

Nature of Case: Violations of the Computer Fraud and Abuse Act

Electronic Data Involved: Contents of laptop

Trickey v. Kaman Indus. Technologies Corp., 2010 WL 3892228 (E.D. Mo. Sept. 29, 2010)

Dec 01 2010

Key Insight: Where plaintiff suspected defendants of withholding responsive emails and sought to compel defendants to explain their preservation and production efforts and to produce all responsive ESI, court found defendants? explanation of its discovery efforts insufficient to determine whether they had satisfied their obligations where defendants failed to answer questions such as what happens to emails that are ?manually persevered? by individual custodians, the method of preservation employed by defendants (e.g. retaining existing storage archives, creating a mirror image of computer systems), and the availability of backup copies of data from an allegedly stolen laptop, and ordered defendants to provide such information, among other things, and to provide a copy of the police report ?presumably? filed for the stolen laptop

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, ESI

Tag:Data Preservation