Data Preservation – Page 67 – Electronic Discovery Law

Phillip M. Adams & Assoc., LLC v. Fujitsu, Ltd., 2010 WL 1064429 (D. Utah Mar. 18, 2010)

Dec 01 2010

Key Insight: Where defendant subpoenaed third parties seeking production of communications between defendant and those third parties from years prior, and where defendant could not produce those communications itself, court found the information relevant and denied third parties? motion to quash but, noting that defendant?s insufficient document retention policies resulted in the need to subpoena the information, court ordered defendant to bear the costs of production

Nature of Case: Patent infringement

Electronic Data Involved: Emails, ESI

Azevedo v. City of Fresno, 2010 WL 2353526 (E.D. Cal. June 9, 2010)

Dec 01 2010

Key Insight: Where two years following the relevant altercation the taser used on plaintiff was sent to the manufacturer for repair, deemed irreparable, and was destroyed without preserving the data contained thereon, the court ruled the spoliation was negligent and declined to impose dispositive sanctions or evidence preclusion, but, noting it was ?troubled? by the data?s destruction, granted permission for plaintiff to file a motion in limine addressing the propriety of a rebuttable inference instruction regarding the spoliation

Nature of Case: Claims arising from detention and arrest of plaintiff which resulted in plaintiff being tasered and injured

Electronic Data Involved: Taser data

Harkabi v. Sandisk Corp., 08 Civ. 8203 (WHP) (S.D.N.Y. Aug, 23, 2010)

Dec 01 2010

Key Insight: For failing to preserve the laptops issued to plaintiffs while working for defendant, the court found defendant was ?at a minimum? negligent and indicated that an adverse inference would be crafted after all the evidence had been received. For ?prolonged delay? in producing relevant emails the court denied terminating sanctions but ordered monetary sanctions in the amount of $150,000

Nature of Case: Breach of contract, breach of implied covenant of good faith and fair dealing

Electronic Data Involved: Data on laptops, emails

Kwon v. Costco Wholesale Corp., 2010 WL 571941 (D. Haw. Feb. 17, 2010)

Dec 01 2010

Key Insight: Court granted in part plaintiff?s motion in limine and imposed an adverse inference resulting from defendant?s failure to preserve surveillance video tape potentially containing footage of the underlying accident upon finding that defendant was aware of its duty to preserve but took no steps to prevent the footage from being automatically recorded over; court denied request for default judgment where such a drastic step was not warranted absent evidence of the ?requisite willfulness, fault, or bad faith?; court declined to impose monetary sanctions

Nature of Case: Personal injury/slip and fall

Electronic Data Involved: Video surveillance tape

DeMeo v. Kean, 754 F. Supp. 2d 435 (N.D.N.Y. 2010)

Dec 01 2010

Key Insight: Finding sufficient circumstantial evidence to support plaintiff?s claim of willful or intentional spoliation and sufficient direct evidence that defendants? handling of the relevant surveillance footage was ?at least negligent,? the court declined to order terminating sanctions where plaintiff was ?not at a complete loss? in light of alternative evidence to support his claims, but ordered an adverse inference, the language of which will be addressed at trial

Nature of Case: Violations of state constitutional rights and state tort claims arising from an altercation

Electronic Data Involved: Video surveillance footage

Dana Ltd. v. American Axle & Mfg. Holdings, Inc., 2010 WL 5394885 (W.D. Wash. Dec. 22, 2010)

Dec 01 2010

Key Insight: Court granted defendant?s motion to clarify the agreed preliminary injunction order where, following entry of the agreement, defendant determined that the broad language addressing preservation created a cost prohibitive obligation that was broader than necessary to protect the plaintiff and agreed to enter an order reflecting defendant?s proposed revision which was more specific regarding what must be preserved

Electronic Data Involved: ESI

Crown Castle USA, Inc. v. Fred A. Nudd Corp., 2010 WL 1286366 (W.D.N.Y. Mar. 31, 2010)

Dec 01 2010

Key Insight: Court found destruction or loss of documents resulting from failure to issue a litigation hold grossly negligent but declined to recommend dismissal or an adverse inference where the record did not reveal actual or likely prejudice and held open defendant?s option to renew their request following re-depositions of the relevant custodian, the cost of which plaintiff was to bear; for the late production of responsive documents, court recommended additional depositions and for plaintiff to bear the cost and for plaintiff to bear defendants? costs associated with the instant motions; magistrate judge?s recommendations were affirmed by the district court in their entirety 2010 WL 4027780 (W.D.N.Y. Oct. 14, 2010)

Nature of Case: Claims arising from alleged defects in cellular towers designed and manufactured by defendant

Electronic Data Involved: ESI, email

United States v. Laurent, 2010 WL 2404419 (1st Cir. June 17, 2010):

Dec 01 2010

Key Insight: For the erasure of relevant surveillance tape pursuant to department practice, the trial court properly denied defendant?s request for dismissal absent evidence of destruction in bad faith because the evidence was not exculpatory but rather ?potentially useful?; for the delayed disclosure of the existence and subsequent destruction of the tape, trial court properly denied request for sanctions absent a showing of prejudice; trial court properly denied request for an adverse inference absent evidence of bad faith

Nature of Case: Criminal drug charges

Electronic Data Involved: Video surveillance tape

D’Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 (D.D.C. Aug. 24, 2010)

Dec 01 2010

Key Insight: Where defendants? failed to preserve relevant evidence but later undertook a ?diligent and expensive attempt to retrieve what was lost? resulting in the discovery of hundreds of thousands of documents, the court declined to impose default judgment absent clear and convincing evidence of bad faith and found that the imposition of attorneys? fees would result in ?disproportional punishment? in light of defendants? search expenditures; court declined to impose adverse inference or issue preclusion where the quantity and nature of evidence still missing was in dispute such that prejudice could not be established and ordered an evidentiary hearing; court found letter sent to parent company of defendant (plaintiff?s employer) was sufficient to trigger preservation obligation where the letter made specific mention of its applicability to all subsidiaries, was unambiguous about the intent to sue, and indicated its applicability to SFX in its reference line

Nature of Case: Employment discrimination

Electronic Data Involved: ESI, laptop

Cenveo Corp. v. S. Graphic Sys., Inc., 2010 WL 3893709 (D. Minn. Sept. 30, 2010)

Dec 01 2010

Key Insight: For CFO?s intentional destruction of evidence to defeat litigation despite a duty to preserve, the district court judge adopted the magistrate judge?s recommendation and imposed a $100,000 fine and found that more drastic sanctions were not warranted where the resulting prejudice was mitigated by the availability of all the defendants and other witnesses for questioning

Nature of Case: Tortious interference with business relationships, misappropriation of trade secrets, unfair competition

Electronic Data Involved: Emails

Tag:Data Preservation