Data Preservation – Page 72 – Electronic Discovery Law

County of Erie v. Abbot Labs., Inc., 913 N.Y.S.2d 482 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Where plaintiff failed to take steps to preserve potentially relevant documents until approximately three and one half years after the lawsuit was initiated and was thus grossly negligent, the court granted an adverse inference and monetary sanctions equal to defendant?s reasonable fess and costs of making the motion for sanctions

Nature of Case: Suit alleging that drug companies had inflated average wholesale price for Medicaid drugs

Electronic Data Involved: ESI

Brown v. Kia Motors Corp., 2010 WL 135127 (W.D. Pa. Jan. 9. 2010)

Dec 01 2010

Key Insight: Court declined to order adverse inference for the destruction of plaintiff?s wife?s (a non-party) camera and memory card and plaintiff?s resulting inability to provide the ?digital files? created when the relevant photographs were taken where ?the camera and memory stick [did] not appear to have ever been within plaintiff?s control? and where ?it [did] not appear that the camera and memory stick were suppressed or withheld, but rather both were destroyed in an accident? and thus the elements necessary for an adverse inference were not met

Nature of Case: Product liability

Electronic Data Involved: Digital files related to photographs alleged to be relevant to “the condition of the seatlbelt”

Field Day, LLC v. County of Suffolk, 2010 WL 1286622 (E.D.N.Y. Mar. 25, 2010)

Dec 01 2010

Key Insight: Court declined to find County employees culpable for spoliation of ESI, but ordered monetary sanctions against the County for negligently failing to adequately preserve ESI and declined harsher sanctions where many documents were produced in hard copy and thus the resulting prejudice was unclear; court?s analysis of culpability included recognition that the alleged spoliation occurred in 2003-2004, during a time when the law of preservation of ESI was not fully developed

Nature of Case: Claims arising from denial of mass gathering permit

Electronic Data Involved: ESI

In re Global Technovations, Inc., 431 B.R. 739 (Bankr. E.D. Mich. 2010)

Dec 01 2010

Key Insight: Where defendants failed to establish plaintiffs? responsibility for destroying or losing any documents and failed to establish prejudice resulting from the loss, the court concluded that no sanctions were appropriate and denied defendants? renewed motion for sanctions; in so deciding, court declined to follow the standard for imposing an adverse inference previously set forth in Forest Labs, Inc. v. Caraco Pharm. Labs., Ltd. 2009 WL 998402 (E.D. Mich. 2009) which held that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference

Nature of Case: Bankruptcy adversary proceeding

Electronic Data Involved: ESI

Piccone v. Town of Webster, 2010 WL 3516581 (W.D.N.Y. Sept. 3, 2010)

Dec 01 2010

Key Insight: Court denied plaintiff?s motion for spoliation sanctions where plaintiff failed to establish the existence of a duty to preserve at the time of defendants? destruction of ESI; court denied defendants? motion for spoliation sanctions where defendants failed to establish the relevance of the emails at issue or any prejudice resulting from plaintiff?s failure to produce certain emails, particularly where defendant possessed its own copies; court denied defendants? motion to compel inspection of plaintiff?s computer but acknowledged their right to explore plaintiff?s preservation practices at deposition and ordered plaintiff to make a mirror image of her hard drive to be left in the custody of her attorney to assure preservation of ESI

Nature of Case: Employment discrimination

Electronic Data Involved: Emails, hard drive

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Wright v. City of Salisbury, 2010 WL 126011 (E.D. Mo. Jan. 7, 2010)

Dec 01 2010

Key Insight: Where plaintiff purposefully arranged a conversation with the mayor, recorded the conversation, preserved the portion relevant to his lawsuit on his website server and then lost the remaining, irrelevant portion as the result of problems with his computer, court denied defendants? motion for spoliation sanctions where defendants failed to establish plaintiff?s bad faith or any prejudice resulting from the loss and where the court found plaintiff?s uncontroverted explanation for the loss ?reasonable and believable?

Nature of Case: Wrongful termination

Electronic Data Involved: Audio tape

State v. Durham, 2010 WL 1254355 (Ohio App. Ct. Apr. 1, 2010)

Dec 01 2010

Key Insight: Where defendant appealed his conviction and argued the State?s failure to preserve videotape depicting a struggle between police and defendant was a violation of due process, court found the videotape was not subject to production pursuant to Brady absent evidence that it contained ?materially exculpatory evidence?, and that absent evidence of bad faith, defendant could not show a due process violation arising from the destruction of ?potentially useful? evidence

Nature of Case: Criminal

Electronic Data Involved: Surveillance video

Chapman v. Gen. Board of Pension & Health Benefits of the United Methodist Church, 2010 WL 2679961 (N.D. Ill. July 6, 2010)

Dec 01 2010

Key Insight: Where defendant failed to specify a form of production in its initial discovery requests and where defendant produced documents in hard copy, court found that no reproduction of electronic documents was required and rejected defendant?s arguments that plaintiff had failed to uphold her discovery obligations

Nature of Case: Violations of American’s with Disabilities Act

Electronic Data Involved: Electronic versions of previously produced hard copy

Grey v. Kirkland & Ellis, LLP, 2010 WL 3526478 (N.D. Ill. Sept. 2, 2010)

Dec 01 2010

Key Insight: Where plaintiffs offered nothing more than speculation regarding defendants? alleged intentional or grossly negligent spoliation of metadata and where defendant asserted that before destroying the server at issue, the information thereon was migrated and no metadata was knowingly changed, the court declined ?to infer from the absence of metadata that such evidence would have been favorable to Plaintiff?s claims?

Nature of Case: Employment discrimination

Electronic Data Involved: Electronic records of phone calls, metadata

Tag:Data Preservation