Data Preservation – Page 75 – Electronic Discovery Law

Am. Family Mut. Ins., Co. v. Roth, 2009 WL 982788 (N.D. Ill. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where defendant discarded a hard drive that had been ordered produced for inspection, court rejected evidence of defendant?s lack of ?know-how? or ?resources? to maintain the hard drive in light of the lack of expense or effort required beyond physical retention and held defendant in contempt of court; court also found grounds for contempt where evidence ordered destroyed or turned over to plaintiffs was discovered on defendants? hard drives upon forensic inspection; where plaintiffs presented ?clear and convincing evidence? that defendants intentionally destroyed evidence by discarding relevant hard drives subject to a duty to preserve, court found spoliation had occurred and ordered an adverse inference instruction but declined to order default judgment where prejudice did not render plaintiffs unable to prove their case

Nature of Case: Misappropriation of customer information

Electronic Data Involved: Hard drives, ESI

U.S. v. Boyce, 2009 WL 1034775 (Apr. 17, 2009)

Dec 01 2009

Key Insight: Court ordered evidentiary hearing where defendant argued the case against him should be dismissed upon the police department?s inability to produce in-car videotape allegedly containing exculpatory evidence because of ?equipment problems? and where defendant asserted that factual issues needed to be resolved surrounding the department?s efforts to secure the footage and whether any procedure for preservation existed

Nature of Case: Possession with intent to distribute

Electronic Data Involved: Video tape

Kotler v. Woods, 2009 WL 1011701 (E.D.N.Y. Apr. 15, 2009)

Dec 01 2009

Key Insight: Where petitioner challenged his conviction on grounds that the state destroyed material evidence in the form of cassette tapes containing the dictation of a detective?s report and therefore violated his due process rights, court concluded petitioner failed to demonstrate a Brady violation where petitioner failed to show that the evidence would have been favorable to him and would have altered the outcome of his trial and where the trial court gave an adverse inference instruction related to the loss of the tapes that also made a change in the outcome unlikely

Nature of Case: Petition for writ of habeus corpus

Electronic Data Involved: Cassette tapes

Lucas v. Old Navy, LLC, 2009 WL 1172710 (M.D. La. Apr. 28, 2009)

Dec 01 2009

Key Insight: Where plaintiff argued she was entitled to a presumption that defendant had constructive notice of the hanger on the floor that allegedly caused her injuries because defendant failed to preserve the surveillance tape which would have proven such notice, but where plaintiff failed to request preservation of the relevant tape and failed to notify defendant of her intent to sue resulting in the loss of the tape from the system after 60 days, and where plaintiff offered no evidence of defendant?s bad faith, court declined to rely on such a presumption and granted defendant?s motion for summary judgment

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance videotape

Stirling Bridge, LLC v. Porter, 2009 WL 125549 (Ariz. Ct. App. May 7, 2009)

Dec 01 2009

Key Insight: No abuse of discretion in granting defendant?s motion for summary judgment on the issue of destruction of evidence where defendant offered uncontroverted evidence that his partner destroyed computers, without defendant?s involvement, because they were ?obsolete? and where plaintiffs failed to ?raise a disputed issue of material fact regarding [defendant?s] responsibility for [his partner?s] destruction of the computer and other electronic evidence?

Nature of Case: Legal malpractice, breach of fiduciary duty, breach of contract, and securities fraud

Electronic Data Involved: Computers (hard drives)

Realnetworks, Inc. v. DVD Copy Control Assoc., Inc., 2009 WL 1258970 (N.D. Cal. May 5, 2009)

Dec 01 2009

Key Insight: Where, despite plaintiffs? failure to specify each technology individually, plaintiffs? preservation order was deemed sufficient because the instructions to preserve utilized terminology customarily used within the company to refer a category of technologies, including those at issue, court nonetheless ordered parties to negotiate stipulated Preservation Order going forward; court ordered monetary sanctions for failure to preserve prior employee?s notebook, but declined to order sanctions for plaintiff?s alleged instructions to employees to delete emails absent evidence that employees willfully deleted emails after the preservation order was issued and where one employee at issue testified that emails subject to preservation were not among those deleted and where a second employee at issue deleted emails prior to duty to preserve and subsequently located back up drive with substantial number of non-email documents

Nature of Case: Declaratory judgment

Electronic Data Involved: Email, ESI

Phillips v. Potter, 2009 WL 1362049 (W.D. Pa. May 14, 2009)

Dec 01 2009

Key Insight: Where defendants failed to timely place a litigation hold and where electronic evidence was subsequently destroyed by an automatic deletion system, court declined to impose sanctions upon plaintiff?s failure to show that the evidence destroyed was relevant to her claims

Nature of Case: Violations of Title VII and breach of contract

Electronic Data Involved: ESI

Triton Constr. Co., Inc. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115 (Del. Ch. May, 18, 2009)

Dec 01 2009

Key Insight: Finding that defendant should have expected litigation upon his resignation to accept employment with a competitor, court found that defendant ?intentionally, or at a minimum recklessly destroyed or failed to preserve evidence? by installing wiping software to target specific files for overwriting, by deleting thousands of files and folders as well as emails, and by failing to produce his home computer or portable thumb drive without adequate explanation; court allowed adverse inference that missing information would have supported plaintiff?s position ?on any issue to which that information was relevant?

Nature of Case: Breach of fiduciary duty by working simultaneously for direct competitor

Electronic Data Involved: Email, ESI

In re Debusk, 2009 WL 1256891 (E.D. Tenn. May 1, 2009)

Dec 01 2009

Key Insight: District court affirmed bankruptcy court?s denial of debtor?s discharge for violations of 11 U.S.C. ? 727(a)(3), among other things, where debtor failed to preserve adequate records from which is financial condition or business transactions could be ascertained and where debtor failed to offer sufficient justification for such behavior beyond his own failure to adequately back up his electronic records and the subsequent loss of his records as the result of a computer virus

Nature of Case: Bankruptcy

Electronic Data Involved: Electronic records

Innis Arden Golf Club v. Pitney Bowes, Inc., 257 F.R.D. 334 (D. Conn. 2009)

Dec 01 2009

Key Insight: Where consulting firm retained by plaintiff destroyed soil samples and related electronic data absent implementation of a litigation hold and where plaintiff was obligated to preserve such evidence in light of the possibility of litigation and its knowledge of the evidence?s relevance to that litigation, court attributed the consulting firm?s destruction of the samples and data to plaintiff based upon ?the close ties? between them and imposed a sanction precluding the admission of evidence based on the destroyed evidence; court found that defendant?s failure to conduct its own testing upon notice of impending remediation to the relevant property did not constitute a disclaimer of defendant?s interest in plaintiff?s pre-remediation soil samples, especially where remediation destroyed defendant?s ability to verify plaintiff?s testing results or conduct additional tests and where defendant was not aware that the existing data in plaintiff?s possession would be destroyed

Nature of Case: Cost recovery action

Electronic Data Involved: Soil samples and related electronic data

Tag:Data Preservation