Data Preservation – Page 66 – Electronic Discovery Law

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)

State v. Absher, 2010 WL 3860501 (N.C. App. Ct. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where police department failed to preserve video surveillance footage containing images of the alleged assault at issue despite a specific written request for preservation by defendants? counsel and instead altered the tape to remove significant portions and then destroyed the original, superior court did not err in dismissing the charges against defendants because of the irreparable prejudice caused by the loss of the video tape

Nature of Case: Criminal/Assault

Electronic Data Involved: Video surveillance footage

Ferron v. Echostar Satellite, LLC, 2010 WL 5395716 (6th Cir. Dec. 28, 2010)

Dec 01 2010

Key Insight: Where defendants produced a CD containing responsive ESI, including links to relevant graphic images which plaintiff viewed, but where the links eventually ?expired? and the images could no longer be seen and where defendants thereafter refused to produce printed copies of the previously produced advertisements, the court denied plaintiff?s motion for sanctions where plaintiff had a duty to preserve relevant evidence in his possession but failed to take steps to preserve the images for future use

Nature of Case: Violations of Ohio Consumer Sales Practices Act

Electronic Data Involved: Expired links to relevant images

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

U.S. Bank Nat?l Assoc. v. Parker, 2010 WL 559135 (E.D. Mo. Feb. 10, 2010)

Dec 01 2010

Key Insight: Considering both the ?good cause? standard and the ?preliminary injunction-style analysis? court determined plaintiff was not entitled to expedited discovery to conduct forensic examination of defendant?s cell phone, PDA, and personal computer where defendant assured the court the relevant data would be preserved and where plaintiff failed to show the potential for spoliation or resulting prejudice

Nature of Case: Breach of a Confidentiality and Non-Solicitation Agreement, tortious interference with Plaintiff’s relationships with its clients and misappropriation of Plaintiff’s trade secrets

Electronic Data Involved: ESI

R.C. Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262 (6th Cir. 2010)

Dec 01 2010

Key Insight: District court did not abuse its discretion when it denied plaintiff?s motion for spoliation sanctions against remaining defendant where defendant was not responsible for the destruction of the relevant servers and the district court thus ?balanced the lack of any assertion of wrongdoing by [defendant] with the harm caused to [plaintiff?s] claims? and where Ohio law provided a remedy for a party injured by another party?s spoliation of evidence, namely a claim for the tort of spoliation (which plaintiff apparently asserted against the actual spoliating party)

Nature of Case: Copyright/trade secret infringement, intentional spoliation

Electronic Data Involved: Servers containing relevant ESI

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

Tag:Data Preservation