Data Preservation – Page 64 – Electronic Discovery Law

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Cencast Servs., LP v. United States, 2010 WL 3488806 (Fed. Cl. Ct. Sept. 3, 2010)

Dec 01 2010

Key Insight: Where data was lost as the result of the theft of a laptop and where hard copy documents were accidentally shredded despite efforts to preserve them safely, the court denied plaintiffs? motion for an adverse inference where defendant was ?at most? negligent and an adverse inference would be ?disproportionate to the offense?, where evidence was presented that indicated the requested presumption arising from the adverse inference was untrue, and where plaintiffs failed to demonstrate significant prejudice as the result of the loss

Nature of Case: Tax related claims

Electronic Data Involved: Contents of laptop, hard copy

Whited v. Motorists Mutual Ins. Co., 2010 WL 3862717 (E.D. Mich. Sept. 28, 2010)

Dec 01 2010

Key Insight: For plaintiff?s willful and bad faith violations of the court?s orders which resulted in prejudice to the defendants, including unexplained delays in production and intentional deletion of files on computers which the court had ordered no one to use, and where the court had previously warned that failure to comply could result in dismissal, court ordered dismissal of plaintiff?s claims

Nature of Case: Cross claims arising from insurance payments for home health care

Electronic Data Involved: ESI

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

Wright v. City of Salisbury, 2010 WL 126011 (E.D. Mo. Jan. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff purposefully arranged a conversation with the mayor, recorded the conversation, preserved the portion relevant to his lawsuit on his website server and then lost the remaining, irrelevant portion as the result of problems with his computer, court denied defendants? motion for spoliation sanctions where defendants failed to establish plaintiff?s bad faith or any prejudice resulting from the loss and where the court found plaintiff?s uncontroverted explanation for the loss ?reasonable and believable?

Nature of Case: Wrongful termination

Electronic Data Involved: Audio tape

State v. Durham, 2010 WL 1254355 (Ohio App. Ct. Apr. 1, 2010)

Dec 01 2010

Key Insight: Where defendant appealed his conviction and argued the State?s failure to preserve videotape depicting a struggle between police and defendant was a violation of due process, court found the videotape was not subject to production pursuant to Brady absent evidence that it contained ?materially exculpatory evidence?, and that absent evidence of bad faith, defendant could not show a due process violation arising from the destruction of ?potentially useful? evidence

Nature of Case: Criminal

Electronic Data Involved: Surveillance video

Chapman v. Gen. Board of Pension & Health Benefits of the United Methodist Church, 2010 WL 2679961 (N.D. Ill. July 6, 2010)

Dec 01 2010

Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations

Nature of Case: Violations of American’s with Disabilities Act

Electronic Data Involved: Electronic versions of previously produced hard copy

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish the existence of a duty to preserve at the time of defendants? destruction of ESI; court denied defendants? motion for spoliation sanctions where defendants failed to establish the relevance of the emails at issue or any prejudice resulting from plaintiff?s failure to produce certain emails, particularly where defendant possessed its own copies; court denied defendants? motion to compel inspection of plaintiff?s computer but acknowledged their right to explore plaintiff?s preservation practices at deposition and ordered plaintiff to make a mirror image of her hard drive to be left in the custody of her attorney to assure preservation of ESI

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, hard drive

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Tag:Data Preservation