Data Preservation – Page 73 – Electronic Discovery Law

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)

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

Penberg v. Healthbridge Mgmt., No. 08 CV 1534(SJF), 2010 WL 2787616 (E.D.N.Y. Mar. 29, 2010)

Dec 01 2010

Key Insight: As sanction for plaintiff?s deliberate destruction of electronic documents in bad faith despite a duty to preserve triggered no later than his receipt of defendant?s affirmative defenses, court declined to order dismissal but ordered that plaintiff pay the attorneys fees and costs associated with defendant?s motion and the hiring of its forensics expert who established that spoliation had occurred; court denied motion to amend complaint to include cause of action for spoliation where ?such a claim is not cognizable under New York law?

Nature of Case: Disability discrimination, age discrimination, violations of FMLA

Electronic Data Involved: ESI, contents of computer

Humphrey v. Sallie Mae, Inc., 2010 WL 2522743 (D.S.C. June 17, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion to conduct discovery prior to the Rule 26(f) conference where plaintiff sought to subpoena her own cell phone provider to obtain electronic data that was in danger of being purged pursuant to Verizon?s data retention policies and where the request was reasonable in light of the limited scope of the subpoena and the danger of irreparable harm to plaintiff if the data was lost

Electronic Data Involved: Electronic data in possession of cellular phone service provider

Tag:Data Preservation