Data Preservation – Page 64 – Electronic Discovery Law

Univ. Sports Publ?ns Co. v. Playmakers Media Co., 2010 WL 2802322 (S.D.N.Y. July 14, 2010)

Dec 01 2010

Key Insight: Where the issue before the court was whether defendant had intentionally accessed plaintiff?s database without authorization, court relied on an adverse inference arising from defendant?s intentional destruction of a laptop which would have provided key evidence and held that a genuine issue of material fact existed such that summary judgment was not appropriate

Nature of Case: Alleged violations of Computer Fraud and Abuse Act

Electronic Data Involved: Laptop

Salamey v. Berghuis, 2010 WL 3488692 (E.D. Mich. June 30, 2010)

Dec 01 2010

Key Insight: Where surveillance footage stored on a hard drive was overwritten and lost, it was ?reasonable for the court of appeals to find that the police did not act in bad faith? where the investigator had no reason to believe that extensive review of the footage would be warranted and where there was no evidence that he purposefully erased the footage or allowed it to be rewritten and where the investigator testified he did not know the drive would rewrite itself while unplugged; court stated, ?even if [the investigator] and other police were grossly negligent in thinking that the hard drive would not rewrite itself when unplugged, that does not constitute bad faith?

Nature of Case: Criminal/Armed robbery

Electronic Data Involved: Surveillance footage stored on hard drive

People v. Jobe, 2010 WL 4106708 (Cal. App. Ct. Oct. 20, 2010)

Dec 01 2010

Key Insight: Trial court did not err by refusing to dismiss based on prosecutions failure to preserve potentially exculpatory video surveillance tape where the tape was never in the possession of the State but rather remained in the possession of the market and where the exculpatory value of the video was not apparent, and thus there was no evidence of bad faith

Nature of Case: Attempted robbery

Electronic Data Involved: Video surveillance footage

Union Pump Co. v. Centrifugal Tech., Inc., 2010 WL 186616 (5th Cir. Dec. 16, 2010)

Dec 01 2010

Key Insight: Noting the need to wield a court?s inherent power to impose sanctions with ?great restraint?, the appellate court found the trial court did not abuse its discretion in declining to impose attorney?s fees as an additional sanction for defendant?s spoliation where the court provided an adverse inference instruction to the jury and where the trial court found the jury?s verdict provided ?adequate compensation? for plaintiff?s claims; appellate court noted plaintiff?s failure to renew its request for fees based on spoliation following the jury?s verdict

Nature of Case: Misappropriation of trade secrets, unfair competition

Electronic Data Involved: ESI, hard drives, backup tapes

Otsuka v. Polo Ralph Lauren Corp., 2010 WL 366653 (N.D. Cal. Jan. 25, 2010)

Dec 01 2010

Key Insight: In class action for unpaid wages, court denied plaintiffs? motion for spoliation sanctions arising from defendants? admitted failure to preserve potentially relevant video surveillance tape where, because of the primary purpose of the surveillance cameras, i.e., deterring theft, the court could not conclude that defendants was obligated to immediately identify the footage as potentially relevant to plaintiffs? wage claims and preserve it and where, when plaintiffs? claims were filed, ?much of the footage? had already been destroyed pursuant to routine recycling of the surveillance tapes

Nature of Case: Action for unpaid wages

Electronic Data Involved: Video surveillance footage

Language Line Servs., Inc. v. Language Servs. Assocs., LLC, 2010 WL 2764714 (N.D. Cal. July 13, 2010)

Dec 01 2010

Key Insight: Upon plaintiff?s showing of a likelihood of success in its claims and a possibility of irreparable harm absent judicial intervention, the court granted plaintiff?s motion for a preliminary injunction precluding defendants from using, copying or divulging plaintiff?s confidential information and from destroying or erasing such information, among other things; upon the parties? agreement, the court also appointed a Special Master to preside over all proceedings regarding the preservation of plaintiff?s information in the possession of defendants, the forensic imaging of defendant?s computer systems and servers to determine the extent of plaintiff?s information in their possession, and defendant?s communications with any of plaintiff?s customers appearing in the alleged confidential information

Nature of Case: Misappropriation of Trade Secrets and related claims

Electronic Data Involved: ESI

Kaufman v. Am. Express Travel Related Servs. Co., Inc., 2010 WL 3365921 (N.D. Ill. Aug. 19, 2010)

Dec 01 2010

Key Insight: Where defendant admitted that information regarding potential class members had been deleted pursuant to its regular information management practice and indicated that some (but not all) information could be retrieved from backup tapes, the court acknowledged defendant?s duty to preserve but reasoned the culpability for such deletions was ?somewhat lessened? because no one had requested that defendant alter is retention policies and because the deletions occurred ?pursuant to the regular operation? of those policies and determined that no conclusions could be reached on the record provided but that ?the court may consider imposing a remedy in any findings regarding the fairness of settlement?

Nature of Case: Class action challenging certain fees assessed on American Express-issued gift cards

Electronic Data Involved: Customer-identifying information

Romero v. Allstate, 2010 WL 4138693 (E.D. Pa. Oct. 21, 2010)

Dec 01 2010

Key Insight: Court granted plaintiffs? request for production of documents in native format and rejected defendants? arguments that plaintiffs must show a ?particularized need? for metadata where ?multiple courts? have held the burden falls to the objecting party to establish hardship or expense and where defendants failed to show how such a production would negatively impact them and noted that were such a showing necessary, plaintiff would have satisfied it; court ordered parties to meet and confer regarding the search terms, additional custodians, and other ?essential details about [defendants?] search methodology? going forward but declined to compel defendant to disclosure the methods utilized for past searching where such an order would result in undue burden to defendants; court declined to compel defendants to certify that they had complied with their discovery obligations absent evidence of spoliation

Nature of Case: Class action

Electronic Data Involved: ESI, metadata

Cruz v. G-Town Partners, L.P., 2010 WL 5297161 (Del. Super. Ct. Dec 3, 2010)

Dec 01 2010

Key Insight: Court denied motion for adverse inference for defendant?s ?inadequately explained, perhaps even suspect? inability to produce photographs of the alleged accident scene (the bathroom of plaintiff?s apartment) where plaintiff ?did not exhaust every available mechanism to obtain these photographs? (by failing to obtain a forensic analysis of the computers alleged to have stored the photos, for example) and where the facts underlying the absence of the photos were ?sufficiently equivocal and incomplete to defeat plaintiff?s claim of entitlement to an adverse inference? and where the probative value of the photos was ?speculative at best?; court?s denial of adverse inference resulted in denial of application of Res Ipsa Loquitur and thus the entry of summary judgment in favor of defendants

Nature of Case: Personal Injury

Electronic Data Involved: Photographs stored electronically and sent via email

Diocese of Harrisburg v. Summix Dev. Co., 2010 WL 2034699 (M.D. Pa. May 18, 2010)

Dec 01 2010

Key Insight: Court ordered adverse inference in favor of defendant where plaintiff failed to preserve backup tapes which ?may have contained emails with evidence to support defendants? claims?, despite a duty to do so

Electronic Data Involved: Backup tapes

Tag:Data Preservation