Data Preservation – Page 65 – Electronic Discovery Law

Clark v. Randalls Food, 317 S.W.3d 351 (Tex. Ct. App. 2010)

Dec 01 2010

Key Insight: Trial court did not abuse discretion in denying motion for sanctions where, despite defendant?s failure to preserve all relevant portions of a surveillance video tape, the court found the tape would not have revealed information necessary to establish defendant?s knowledge of the allegedly dangerous condition at issue and thus, there was no prejudice to plaintiff

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance video

Sanofi-Aventis Deutschland GMBH v. Glenmark Pharm. Inc., USA, 2010 WL 2652412 (D.N.J. July 1, 2010)

Dec 01 2010

Key Insight: Court declined to find spoliation had occurred as to specific emails believed by plaintiff to have been withheld or destroyed by defendant absent sufficient evidence but, relying on defendant?s claims of work-product immunity as to a document created in Feb. 2006, found that defendant anticipated litigation as of that time and imposed an adverse inference as to any documents systematically destroyed after that date pursuant to defendant?s policy of maintaining electronic documents for only one month

Nature of Case: Patent infringement

Electronic Data Involved: ESI

S. New England Tel. Co. v. Global Naps, Inc., 624 F. 3d 123 (2nd Cir. 2010)

Dec 01 2010

Key Insight: Finding of contempt and order to pay plaintiffs? attorney?s fees and costs was no abuse of discretion where the court?s order to disclose financial assets was ?perfectly clear? and where there was ?clear and convincing? evidence of defendants? non-compliance and that defendants were not diligent in their attempts to comply; trial court did not abuse discretion in granting default judgment against all defendants in light of willful and bad faith discovery violations, including intentional deletion of ESI and lying about the existence and location of documents which ?formed a pattern of ?prolonged and vexatious obstruction?, and where lesser sanctions would be ineffective and defendants were aware of the consequences of non-compliance with their discovery obligations

Nature of Case: Claims arising from defendants’ failure to pay for special access servers ordered from plaintiff

Electronic Data Involved: ESI

Oto Software, Inc. v. Highwall Techs., LLC, 2010 WL 3842434 (D. Colo. Aug. 6, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion for sanctions where defendant Highwall breached its obligation to preserve information related to the underlying royalty dispute following receipt of a letter which triggered the duty to preserve and ordered that discovery be re-opened and that defendant Highwall bear the costs but also found that the duty to preserve documents related to the development of allegedly infringing software was not triggered until the filing of the complaint and that no spoliation had occurred; court found purchaser of Highwall?s assets during pendency of the royalty dispute had no duty to preserve where the software at issue was excluded from purchaser?s acquisition

Nature of Case: Royalty dispute, copyright infringement

Electronic Data Involved: ESI

VocalSpace, LLC v. Lorenso, 2010 WL 5247451 (E.D. Tex. Dec. 16, 2010)

Dec 01 2010

Key Insight: Where, despite a clear duty to preserve, defendant transferred relevant data to a new server and then erased and sold the old servers, and where, as a result, ?log files? were lost, the court found that the evidence ?falls short? of evidencing bad faith and declined to impose ?death penalty sanctions? but ordered that the admission of evidence of defendants? preservation efforts and evidence destruction was appropriate and ordered that evidence of the circumstances surrounding the destruction of the servers would be allowed at trial

Nature of Case: Copyright infringement, misappropriation of trade secrets, breach of fiduciary duty, etc.

Electronic Data Involved: ESI, “log files”

Medcorp, Inc. v. Ponpoint Tech., Inc., 2010 WL 2500301 (June 15, 2010)

Dec 01 2010

Key Insight: Where special master determined spoliation was ?willful in the sense that ?Plaintiff was aware of his responsibilities to preserve relevant evidence and failed to take necessary steps to do so? and thus ordered an adverse inference and for each party to bear half of defendant?s attorneys? fees and costs, magistrate judge affirmed the adverse inference upon determining it was the least harsh sanction that would provide an adequate remedy but vacated the award of half of defendant?s fees and, upon determining a reasonable amount, ordered plaintiff to pay the amount of $89,395.88

Electronic Data Involved: Hard drives

Victor v. R.M. Lawler, 2010 WL 521118 (M.D. Pa. Feb. 9, 2010)

Dec 01 2010

Key Insight: Court deferred judgment regarding motion for spoliation sanctions for missing video surveillance tapes of the relevant ?cell extraction? pending defendant?s production of prison policies regarding the proper preservation of such video where the court regarded the ?question of spoliation? to be ?closely intertwined with the issue of whether the defendants followed their own operations procedures in preserving evidence?

Nature of Case: Prisoner’s civil rights lawsuit

Electronic Data Involved: Video surveillance tape

United States v. Renzi, 2010 WL 1417475 (E.D. Mich. Apr. 7, 2010)

Dec 01 2010

Key Insight: Where defendants accused the government of spoliation of all disks (originals and copies) containing relevant data from a particular computer system and requested dismissal of the indictment against them as a result, court denied the motion for dismissal upon determining that defendants failed to establish the materiality of the data such that its destruction (intentional or otherwise) was a constitutional violation and where a complete copy of the data existed on a backup tape seized later in the investigation

Nature of Case: Criminal – Mail fraud

Electronic Data Involved: Data stored on JENKON system

Makrakis v. Demelis, 2010 WL 3004337 (Mass. Sup. Ct. July 13, 2010)

Dec 01 2010

Key Insight: Court found plaintiffs? request for production of emails stored on backup tapes would impose an unreasonable burden and expense where defendant provided evidence of the high cost of restoring the tapes and where plaintiff failed to adequately narrow the request or explain why other sources of discovery were insufficient, but, recognizing that the tapes could contain relevant information, ordered that plaintiff be allowed, at their own expense, ?to obtain a sampling? of the emails stored on the backup tapes and that if the circumstances warranted it, that plaintiff be allowed to move for further discovery

Nature of Case: Claims for injuries resulting from improper administration of medication

Electronic Data Involved: Emails stored on backup tapes

Beluga Shipping GMBH & Co. KS ?Beluga Fantastic? v. Suzlon Energy, Ltd., 2010 WL 3749279 (N.D. Cal. Sept. 23, 2010)

Dec 01 2010

Key Insight: Court granted non-party?s Google Inc.?s Motion to Intervene to oppose Defendant?s request for leave to conduct discovery and to subpoena from Google the contents of two cross-defendants? accounts and other, related information where production of the emails themselves was barred by the Electronic Communications Privacy Act absent consent from the accounts owners, and thus it was futile to issue subpoenas; court granted in part defendant?s petition for leave to conduct discovery and ordered Google to disclose documents reflecting when the accounts were created, the names of the account holders, and the countries from which the accounts were created ? information not precluded from disclosure by the ECPA ? and instructed Google to preserve the snapshot of the emails in the account

Nature of Case: Petition for leave to conduct discovery in foreign judicial proceedings

Electronic Data Involved: Information related to Google account holders, and contents of accounts (emails)

Tag:Data Preservation