Tag:Data Preservation

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

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

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

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

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

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”