Data Preservation – Page 81 – Electronic Discovery Law

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

Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008)

Dec 01 2008

Key Insight: Adverse inference instruction appropriate for two forms of spoliation: (1) individual defendant?s intentional disposal of USB Thumb-Drive containing plaintiff’s proprietary information to prevent plaintiff from “making an issue” of it, and (2) alteration or loss of data through defendants’ mere continued use of laptop and through installation and un-installation of various programs; default judgment not warranted since plaintiff had considerable evidence available to support its argument that defendants misappropriated its confidential information

Nature of Case: Misappropriation of trade secrets and computer fraud and abuse

Electronic Data Involved: Laptop hard drive, USB Thumb-Drive

Barrett v. Ambient Pressure Diving, Ltd., 2008 WL 4280360 (D.N.H. Sept. 16, 2008) (Unpublished)

Dec 01 2008

Key Insight: Sanction of dismissal not warranted where data stored on dive computers was lost when it could no longer be downloaded after one year, since plaintiff did not engage in deliberate destruction, she did not know whether data was helpful or hurtful to her case because she had not seen it, and she had not known that data would automatically become unavailable for download after one year; defendant?s entitlement to alternative relief to be decided at trial; court further granted plaintiff?s motion for summary judgment dismissing defendant?s counterclaims for ?fraud on the court? and ?spoliation of evidence?

Nature of Case: Negligence, product liability, wrongful death

Electronic Data Involved: Dive information stored on VR3 dive computers

SD Protection, Inc. v. Del Rio, 587 F. Supp. 2d 429 (S.D.N.Y. 2008)

Dec 01 2008

Key Insight: Where, despite repeated court orders directing production, plaintiff failed to produce an un-redacted email upon which the case turned and claimed the email inaccessible because the computer on which it was stored had been destroyed and where plaintiff failed to pay court ordered sanctions for its failure to produce, court lifted earlier stay of dismissal and ordered plaintiff to pay additional $5000 sanction plus defendant?s attorneys fees and costs

Nature of Case: Breach of contract

Electronic Data Involved: Email

Powell v. Sharpsburg, 2008 WL 5422577 (E.D.N.C. Nov. 25, 2008)

Dec 01 2008

Key Insight: Where defendant willfully destroyed relevant work orders pursuant to its document retention policy but where defendant should have been aware of the relevance of the documents and the resulting duty to preserve, court ordered adverse inference in favor of plaintiff and prohibited defendants from introducing secondary evidence of contents of spoliated documents

Nature of Case: Title VII action for discriminatory discipline based on race

Mazloum v. Dist. of Columbia Metro. Police Dept., 2008 WL 142869 (D.D.C. Jan. 16, 2008)

Dec 01 2008

Key Insight: Deciding various motions in limine, court found that plaintiff had presented sufficient evidence relating to destruction of surveillance videotape to demonstrate that adverse inference instruction was not barred as a matter of law; court further granted plaintiff?s motion to re-open discovery for limited purpose of conducting focused three-hour deposition of particular individual who was most knowledgeable about defendant?s video surveillance system

Nature of Case: Lebanese nightclub patron brought civil rights action against municipality, police department, and certain employees and owners of nightclub

Electronic Data Involved: Surveillance videotape

Tag:Data Preservation