Data Preservation – Page 81 – Electronic Discovery Law

Bensel v. Allied Pilots Assoc., 263 F.R.D. 150(D.N.J. 2009)

Dec 01 2009

Key Insight: Despite acknowledging that ?defendants should have moved more quickly to place litigation holds on the routine destruction of certain documents and electronic data,? the court found that plaintiffs failed to identify any specific document that was lost or destroyed, failed to establish destruction of documents in bad faith and failed to specify any prejudice arising from the alleged bad behavior and denied plaintiff?s motion for spoliation sanctions; in so holding, court noted plaintiff?s reliance on speculation and ?vague statements? which did not ?rise to the specificity level required by the Third Circuit to impose sanctions or even make a finding of spoliation.?

Nature of Case: Allegations of breach of duty of fair representation

Electronic Data Involved: ESI

Brown v. ICF Int., 2009 WL 7127925 (M.D. La. Apr. 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff was ordered to produce a relevant recording and instead submitted an affidavit indicating that after a ?good faith search? she determined she was not in possession of the recording and had been mistaken in her representations to the contrary, the court granted defendant?s motion and ordered evidentiary sanctions for violating the court?s order to produce the recording after noting plaintiff?s failure to assert the possibility that she was not in possession of the recording prior to the entry of such an order; where plaintiff destroyed her handwritten notes after transcribing portions thereof, the court granted defendant?s request for an adverse inference

Nature of Case: Employment discrimination and retaliation

Electronic Data Involved: Audio recording, handwritten notes

Superior Prod. P?ship d/b/a PBSI v. Gordon Auto Body Parts Co, Ltd, 2009 WL 690603 (S.D. Ohio Mar. 12, 2009)

Dec 01 2009

Key Insight: Acknowledging the reasonableness of plaintiff?s suspicion that information may have been lost in light of defendants? failure to immediately institute a litigation hold and in light of their admitted failure to immediately search all potentially relevant sources of responsive material, court nonetheless denied plaintiff?s motion for sanctions where plaintiff failed to present evidence that any relevant information had actually been lost or destroyed as a result of defendants? failures and in light of defendants? remedial efforts, including conducting additional searches and notifying employees of the litigation hold

Nature of Case: Predatory pricing

Electronic Data Involved: Email, ESI

Scalera v. Electrograph Sys., Inc., 2009 WL 3126637 (E.D.N.Y. Sept. 29, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions, despite finding that defendant violated its duty to preserve and negligently destroyed potentially relevant ESI, where plaintiff produced nothing except speculation in support of her claim that the destroyed emails would have benefited her position.

Nature of Case: Failure to accomodate

Electronic Data Involved: Email

Gillet v. MI Farm Bureau, 2009 WL 4981193 (Mich. Ct. App. Dec. 22, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where plaintiff deleted an ?extremely significant? number of data files from his personal computer despite notice of his obligation to preserve and was thus sanctioned by dismissal of his case, trial court did not abuse its discretion in concluding plaintiff?s actions were not in good faith, particularly in light of the number of files deleted, and properly considered alternative sanctions before imposing terminating sanctions, despite the trial judge?s failure to ?expressly recite? those alternatives on the record; court?s denial of attorneys? fees/monetary sanctions was no abuse of discretion where the court ?dealt appropriately? with plaintiff?s conduct by dismissing the case and where the refusal to impose additional sanctions was ?not unreasoned or unprincipled?

Nature of Case: Sexual harassment

Electronic Data Involved: ESI

Diabetes Ctrs. of Am., Inc. v. Healthpia Am., Inc., 2008 WL 336382 (S.D. Tex. Feb. 5, 2008)

Dec 01 2008

Key Insight: Where court found that defendants may not have taken adequate steps to preserve emails through a backup process but followed the company’s standard procedures, and if anything, there was negligence derived from lax electronic document maintenance procedures, and that plaintiff?s counsel, at most, may have been lax in that inadequate direction and oversight was given to associate to guide her search for relevant and responsive emails, court concluded that, while all parties were remiss in fulfilling their discovery obligations, there was no evidence of ?bad faith? on the part of either party to warrant an instruction on spoliation and denied parties’ competing sanctions motions

Nature of Case: Breach of contract

Electronic Data Involved: Emails, laptops

Robinson v. Motivation Excellence, Inc., 2008 WL 2096957 (W.D. Pa. May 16, 2008)

Dec 01 2008

Key Insight: Because court ruled that plaintiff?s claims were without merit and granted defendant?s motion to dismiss, with prejudice, court concluded there was no need for expert to access laptop?s hard drive and that defendant was entitled to return of its property; court ordered plaintiff to return laptop and other property to defendant former employer, and directed defendant to ?preserve, maintain, and protect all such property and things in their present state from destruction, modification and/or alteration? until the action was finalized

Nature of Case: Wrongful termination

Electronic Data Involved: Employer-provided laptop

Psychopathic Records, Inc. v. Anderson, 2008 WL 4852915 (E.D. Mich. Nov. 7, 2008)

Dec 01 2008

Key Insight: Good cause existed to grant (in part) plaintiffs? motion for expedited discovery upon third party internet service providers prior to Rule 26(f) conference where plaintiff established direct connection between a particular email address and defendant, where email address was connected to the sale of allegedly infringing goods, and where ?very real danger? existed that ISPs would not preserve the information; court denied motion as to two email addresses where no showing of a connection to defendant or alleged infringement was made

Nature of Case: Copyright infringement

Electronic Data Involved: Email

Fox v. Riverdeep, Inc., 2008 WL 5244297 (E.D. Mich. Dec. 16, 2008)

Dec 01 2008

Key Insight: Where defendant breached its duty to preserve evidence by taking ?no steps whatsoever to preserve emails or documents? following receipt of a cease and desist letter, court ordered adverse inference instruction that missing documents were unfavorable to defendants but declined to impose requested sanction of default judgment absent a showing of bad faith

Nature of Case: Copyright infringement, breach of contract

Electronic Data Involved: Email

Eckhardt v. Bank of Am., N.A., 2008 WL 111219 (W.D.N.C. Jan. 9, 2008)

Dec 01 2008

Key Insight: Where plaintiff credibly argued that deposition testimony identified responsive but unproduced documents, court ordered defendant to certify that it had thoroughly searched for all responsive documents and to identify any documents or sets of documents that had been deleted, erased, or otherwise destroyed; although court would not require defendant to restore backup media at this juncture, it ordered defendant to identify what otherwise responsive but not readily accessible documents might be retained in archive form, on backup tapes/discs, or on any other backup media; court further ordered defendant to fully identify computers used by decision makers in plaintiff’s termination

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email and other ESI

Tag:Data Preservation