Key Insight: Because outright dismissal was too severe a sanction for spoliation in view of minimal culpability of Sun Trust and slight potential for abuse, court would give jury adverse inference instruction instead
Nature of Case: FMLA claims
Electronic Data Involved: Email
Key Insight: Where defendants were able to produce responsive emails from plaintiff?s email account, but could produce no other emails from accounts of various defendants or from Department of State due to routine ?purging? procedures that included closing individuals’ email accounts, deletion of files from their office computers after they leave employment, and routine deletion of files from State’s email servers, court denied plaintiff?s motion for spoliation sanctions finding that defendants had acted in good faith and that plaintiff had not met threshold showing of relevancy of any specific evidence that was lost
Nature of Case: Discrimination based on race and national origin, wrongful termination
Electronic Data Involved: Email
Key Insight: Court denied plaintiff?s motion in limine for adverse inference for alleged spoliation, despite evidence that files were deleted, where plaintiff offered only conjecture regarding the relevance of the allegedly spoliated documents, where defendant had the means to recover the allegedly spoliated contents of the files and did not, and where defendant failed to show plaintiff acted deliberately with the intent to deprive plaintiffs of the data
Nature of Case: Theft of trade secrets
Electronic Data Involved: Email, ESI
Key Insight: Where defendants failed to preserve DVR footage by not recording it on to a VHS tape before the footage was overwritten on the DVR hard drive, district court modified magistrate judge’s order, finding that it was an abuse of discretion to deny plaintiff’s request for adverse inference charge for defendants’ failure to preserve evidence
Nature of Case: Prisoner asserted ? 1983 action against various prison defendants
Electronic Data Involved: Digital video recording showing altercation between prisoner and prison staff
Key Insight: Where defendant’s failure to preserve emails was merely negligent and plaintiff did not establish that lost evidence would have supported her claims, court denied plaintiff?s motion for default judgment or adverse inference instruction as spoliation sanction; however, since second forensic examination of hard drive was necessitated solely by defendant’s misstatement, court ordered defendant to cover its cost
Nature of Case: Race discrimination and discrimination under ADA
Electronic Data Involved: Emails, hard drive
Key Insight: Court compelled production of deponent to answer specifically tailored questions regarding retention of electronically stored documents where plaintiff suspected spoliation due to defendant?s failure to timely issue preservation notices and where inquiry into retention policies would assist in narrowing scope of discoverable electronic materials; court also compelled production of identity of author of relevant email
Nature of Case: Products liability
Electronic Data Involved: Document retention policies, email
Key Insight: Court denied without prejudice plaintiff?s motion for sanctions based upon defendant?s claimed inability to retrieve the contents of plaintiff?s email account, where defendant had identified several older emails at the time of plaintiff?s discharge (to support its termination of plaintiff) but represented in discovery that its employees’ email accounts were overwritten beginning on the eighth day after a message was either sent or received and that no additional emails existed beyond those produced; court suggested that defendant investigate the matter and be prepared, if requested in discovery, to provide a further explanation of the apparent discrepancy between its ability to retrieve emails at the time of plaintiff?s discharge and its current ability to do so
Nature of Case: Wrongful termination, employment discrimination
Electronic Data Involved: Email
Key Insight: Where defendant asserted that certain data was ?dumped? from its computer system on an ?automatic and periodic basis,? but failed to provide a date or time period when such data was deleted or state whether a diligent effort was made to obtain such information in either electronic or paper format, court found that further discovery was necessary before it could determine whether spoliation sanctions were appropriate and ordered defendant to provide information on when alleged ?data dump? occurred, what information was deleted, and whether backup tapes and/or paper records exist that may provide requested information
Nature of Case: Putative class action
Electronic Data Involved: Information pertaining to the number of prospective class members, including their names and addresses
Key Insight: Where among other things defendants failed to produce documents in violation of court orders, made false statements regarding alleged damage to computer servers and destroyed computer servers in violation of court orders (thereby preventing an independent inspection regarding allegations that servers were damaged), court found that defendants? willful and bad faith discovery misconduct prejudiced plaintiff’s ability to obtain a fair trial on the merits and that lesser sanctions would not adequately rectify the prejudice and delay; court thus struck defendants? answers and entered default judgments against them
Nature of Case: Infringement litigation
Electronic Data Involved: Servers
Key Insight: Court denied motion for spoliation sanctions based on city’s overwriting of backup tapes and failure to preserve computer’s hard drive, where subject computer had been reassigned and its hard drive re-imaged before discovery requests were served, missing evidence was not crucial to plaintiff’s claims, and destruction of the material was not done in bad faith
Nature of Case: Employment discrimination
Electronic Data Involved: Computer hard drive and backup tapes
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