Data Preservation – Page 83 – Electronic Discovery Law

Anaheim Gardens v. United States, 2008 WL 2043243 (Fed. Cl. Feb. 29, 2008)

Dec 01 2008

Key Insight: Court granted motion brought by plaintiffs pursuant to Rule 37(a)(2)(B), Rules of the United States Court of Federal Claims, and issued order compelling defendant to produce witness or witnesses who could fully testify about document retention practices and policies of HUD and actual steps taken to produce documents

Nature of Case: Owners of low-income housing who had received mortgage insurance from Department of Housing and Urban Development (HUD) brought action alleging regulatory taking

Electronic Data Involved: Document retention policies

Pandora Jewelry, LLC v. Chamilia, LLC, 2008 WL 4533902 (D. Md. Sept. 30, 2008)

Dec 01 2008

Key Insight: Court imposed monetary sanctions pursuant to Rule 37 for discovery violations related to defendant?s responses to discovery and its inadequate 30(b)(6) deponent, but declined to award spoliation sanction of adverse inference where defendants failed to preserve emails and could not identify blind copy recipients or explain who wrote the emails or to whom they were intended to be sent but where plaintiff failed to show injury resulting from the emails and could not establish that access to the emails or their recipient lists would have been favorable to that showing; court noted, ?the evidence in this case is easily distinguishable from the destroyed evidence in cases where courts have imposed spoliation sanctions?

Nature of Case: False advertising, tortious interference, unfair competition and related claims

Electronic Data Involved: Blind copy email recipients

U.S. v. Latham, 2008 WL 5146526 (D. Nev. Dec. 5, 2008)

Dec 01 2008

Key Insight: Court denied defendant’s motion to dismiss for failure to preserve exculpatory evidence where defendant alleged government spoliation of potentially exculpatory hard drives but failed to show that the unavailable evidence possessed exculpatory value that was apparent prior to destruction and that he could not obtain comparable evidence by other means and where defendant failed to adequately support an inference that evidence was destroyed in bad faith

Nature of Case: Recieving and transporting child pornography

Electronic Data Involved: Hard drives

UMG Recordings, Inc. v. Doe, 2008 WL 2949427 (N.D. Cal. July 30, 2008)

Dec 01 2008

Key Insight: Where plaintiffs made prima facie showing of infringement, there was no other way to identify Doe defendant, and there was risk that ISP would destroy its logs prior to Rule 26(f) conference, court found that need for expedited discovery outweighed prejudice to defendant and granted plaintiffs? motion for leave to take immediate discovery

Nature of Case: Copyright infringement through use of peer-to-peer (“P2P”) networking

Electronic Data Involved: ISP logs; documents and ESI sufficient to identify defendant’s true name, current and permanent addresses and telephone numbers, email addresses, and Media Access Control addresses

Laface Records, LLC v. Does, 2008 WL 4517178 (D.D.C. Oct. 6, 2008)

Dec 01 2008

Key Insight: Court granted motion to serve limited, immediate discovery on third party internet service provider seeking identities and contact information of defendants where court acknowledged ?good cause exists for Plaintiffs? discovery because Defendants must be identified before this suit can progress?; court ordered third party provider to give five days notice to defendants and set deadline for potential motions to quash

Nature of Case: Copyright infringement

Electronic Data Involved: Names and contact information for ISP subscribers

Remedy Intelligent Staffing, Inc. v. Metro. Employment Corp. of Am., 2008 WL 5156609 (D. Mass. Dec. 5, 2008)

Dec 01 2008

Key Insight: Court declined to order preliminary injunction requiring defendants to image hard drives for production and to produce copies of all electronic files related to the action where plaintiff alleged that defendants destroyed ESI on plaintiff?s server but did not state who deleted it or how, and where plaintiff failed to show the information was not available elsewhere or that ample protection was not provided by the preservation obligations under the Federal Rules or the rules of the American Arbitration Association

Nature of Case: Trademark infringement

Electronic Data Involved: ESI, hard drives

Eckhardt v. Bank of Am., N.A., 2008 WL 1995310 (W.D.N.C. May 6, 2008)

Dec 01 2008

Key Insight: Where plaintiff established through deposition testimony that discoverable documents existed which had not been produced, but court found no bad faith, court declined to give adverse inference instruction and instead allowed plaintiff to seek missing documents from backup tapes and to corroborate substance of any missing documents from witnesses where documents themselves could be recovered

Nature of Case: Alleged violations of Americans with Disabilities Act

Electronic Data Involved: Email; backup tapes

Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., 2008 WL 3261095 (N.D. Tex. Aug. 8, 2008)

Dec 01 2008

Key Insight: For plaintiff?s and its principals? egregious discovery abuses and bad faith conduct, including intentional spoliation of ESI and willful deception and concealment, magistrate judge set out findings of fact and conclusions of law and recommended sanctions in form of adverse inference instruction and monetary sanctions representing all of defendants? fees and costs incurred in connection with sanctions motion; district court overruled plaintiff’s objections and adopted magistrate judge?s rulings

Nature of Case: Breach of fiduciary duty, breach of contract, RICO violations, negligence, gross negligence and injunctive relief

Electronic Data Involved: Hard drives, DVD, various ESI

Arista Records, LLC v. Does 1-4, 589 F. Supp. 2d 151 (D. Conn. 2008)

Dec 01 2008

Key Insight: Court granted plaintiffs? motion to for leave to take expedited discovery from defendants? internet service providers (two universities) for purpose of identifying Doe defendants where information sought was necessary for continued prosecution of the litigation and where narrowly tailored requests would reduce if not eliminate any prejudice to defendants; court limited discovery to defendants? directory information and MAC (media access control) addresses and provided defendants opportunity to object

Nature of Case: Copyright infringement

Electronic Data Involved: ISP directory information, MAC addresses

E.E.O.C. v. Beauty Enters., Inc., 2008 WL 3359252 (D. Conn. Aug. 8, 2008)

Dec 01 2008

Key Insight: Where plaintiffs argued that several BEI supervisors had testified they had not been instructed to preserve documents related to case, court agreed that defense counsel?s litigation hold letter was privileged and ordered BEI to disclose date on which letter was sent and names of recipients

Nature of Case: Employment discrimination

Electronic Data Involved: Letter from BEI’s counsel to BEI supervisors advising them to implement a litigation hold

Tag:Data Preservation