Data Preservation – Page 77 – Electronic Discovery Law

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 Nat?l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs? alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction

Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc.

Electronic Data Involved: ESI

MRT, Inc. v. Vounckx, 299 S.W.3d 500 (Tex. Ct. App. 2009)

Dec 01 2009

Key Insight: Affirming the trial court?s judgment, appellate court found appellees did not fail to comply with discovery obligations or conceal facts, despite failure to initially identify or search backup tapes, where appellant failed to initially request production of backup tapes and where appellees later offered evidence of the unreasonableness of such a request upon court?s order to detail search efforts – court?s analysis also focused on the parties? failure to confer regarding electronic discovery pursuant to Tex. R. Civ. P. 196.4; distinguishing Zubulake, court also found no duty to preserve pre-2000 backup tapes where appellants failed to establish that appellees knew or should have known that the tapes contained ?material and relevant evidence? and thus failed to establish appellees? duty to preserve

Nature of Case: Misrepresentations and fraudulent inducement

Electronic Data Involved: Backup tapes

Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff?s production of documents ?problematic? where it failed to organize the production according to Rule 34 and ordered plaintiff to ?amend? its production to comply; acknowledging that ?the identities of those in control of certain documents is information that may be as relevant as the documents? [substance]?, court ordered search and production of President?s documents despite claims that those documents were produced from other custodians

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Statera v. Henrickson, 2009 WL 2169235 (D. Colo. July 17, 2009)

Dec 01 2009

Key Insight: Court granted plaintiff?s ex parte motion for a temporary restraining order enjoining defendants from ?deleting or destroying, erasing or otherwise making unavailable for further proceedings? any of plaintiff?s relevant business information obtained by defendants while employed by plaintiff and enjoining the deletion or alteration of email messages and other content in relevant email accounts, among other things

Nature of Case: Claims arising from former employees’ formation of competing business and suspected use of plaintiff’s confidential information

Electronic Data Involved: ESI, emails

Sue v. Milyard, 2009 WL 2424435 (D. Colo. Aug. 6, 2009)

Dec 01 2009

Key Insight: Where videotape of relevant incident was stored on computer hard drive until the drive became full and then automatically recorded over and where plaintiff presented no evidence of bad faith or that defendants received any request for preservation prior to the automatic function resulting in loss, court found sanctions were not warranted and denied plaintiff?s motion for reconsideration of his motion to compel

Electronic Data Involved: Videotape of relevant incident

Ellington Credit Fund, Ltd. v. Select Portfolio Servs. Inc., 2009 WL 274483 (S.D.N.Y. Feb. 3, 2009)

Dec 01 2009

Key Insight: Despite plaintiffs? claim that they had ?already been prejudiced? by the ?confessed destruction? of ESI in its native format through defendant?s ?systematic purges? of its computer systems, court denied motion to lift stay of discovery and impose preservation order where defendant provided affidavit stating a litigation hold was imposed and that the ?regular document retention policy? had not been applied to information relating the loans at issue in the case, and where plaintiffs presented no evidence to the contrary

Nature of Case: Breach of Contract

Electronic Data Involved: 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

Chirdo v. Mineral Techs., Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)

Dec 01 2009

Key Insight: Court denied motion for spoliation sanctions for alleged destruction of emails where the emails were destroyed pursuant to defendant?s document retention policy five months prior to defendant?s receipt of plaintiff?s EEOC charge at a time when there was no duty to preserve and where plaintiff only vaguely alleged the contents of the documents and their relevance; human resources representative?s comment that plaintiff?s review was ?evidence in support of any future litigation? did not trigger duty to preserve because ?that is the primary purpose for the retention of human resource records? and because she did not know that the time of the statement that plaintiff would be terminated, let alone file a lawsuit

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Blangsted v. Snowmass-Wildcat Fire Prot. Dist., 2009 WL 2407655 (Aug. 5, 2009

Dec 01 2009

Key Insight: Where defendants sought dismissal or a new trial based upon plaintiff?s loss of an audiotape of the meeting in which he was terminated, court declined to grant the requested sanctions upon finding that no litigation was pending at the time of the loss, that any prejudice to defendants was small, that plaintiff?s degree of culpability was small and where there was no evidence of bad faith; court nonetheless indicated its willingness to consider the loss in any claims for fees or costs citing plaintiff?s failure to disclose the existence and loss of the tape which resulted in expenses to defendants to settle the dispute

Nature of Case: Wrongful termination

Electronic Data Involved: Audio tape

Tag:Data Preservation