Data Preservation – Page 89 – Electronic Discovery Law

Benton v. Dlorah, Inc., 2007 WL 3231431 (D. Kan. Oct. 30, 2007)

Dec 01 2007

Key Insight: Magistrate judge ordered plaintiff to produce responsive emails, and if emails had been deleted, to produce for inspection her computer hard drive from which those emails were sent to allow defendants to use services of computer forensic specialist, if necessary, to retrieve them; request for sanctions denied without prejudice to a further request for a ?negative inference instruction? to be determined by trial judge

Nature of Case: Employment discrimination

Electronic Data Involved: Deleted email, hard drive of plaintiff’s personal computer

In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007)

Dec 01 2007

Key Insight: Kmart’s failure to implement litigation hold and “woefully insufficient” efforts to retrieve responsive information did not warrant spoliation sanctions on present record and would be denied without prejudice to creditor’s renewing it in the future should evidence support it; court awarded creditor portion of attorneys’ fees and costs and ordered Kmart, to the extent it had not already done so, to perform a systematic search of all files on certain drives and produce responsive material to counsel within 14 days of order

Nature of Case: Creditor asserted breach of contract and other claims against Chapter 11 debtor in possession

Electronic Data Involved: Email and other ESI

Forrest v. All Cities Mortg. & Fin., Inc., 2007 WL 3026787 (E.D. Wis. Oct. 16, 2007)

Dec 01 2007

Key Insight: In case where defendant was shutting down its business effective November 1, 2007 and plaintiffs argued that shutdown raised possibility of evidence spoliation, court denied plaintiffs? request for order requiring defendant to preserve documents related to lawsuit since plaintiffs offered no evidence that defendant was actually destroying evidence or failing to retain relevant documentation and because defendant?s duty to prevent spoliation of relevant evidence was inherent in judicial process and business shutdown did not impact it

Nature of Case: Putative class action alleging violations of the Fair Credit Reporting Act

Electronic Data Involved: Unspecified evidence

Cache La Poudre Feeds, LLC v. Land O’ Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007)

Dec 01 2007

Key Insight: Court concluded that defendants’ duty to preserve was triggered by filing of complaint, and not by earlier demand letters that were equivocal and “less than adamant”; court further denied most of the sanctions requested but imposed $5,000 monetary sanction for defendants? failure to preserve hard drives of departed employees and failure to confirm the accuracy and completeness of production; court further rejected plaintiff’s argument that Zubulake V created a new obligation for litigants to conduct “system-wide keyword searches”

Nature of Case: Trademark infringement

Electronic Data Involved: Email

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

In re Hawaiian Airlines, Inc., 2007 WL 3172642 (Bankr. D. Haw. Oct. 30, 2007)

Dec 01 2007

Key Insight: Finding that Mesa?s CFO deleted files that Mesa had duty to preserve, used special software to wipe hard drives and changed computer’s clock in an attempt to conceal what he had done, and that Mesa could have taken reasonable, inexpensive and non-burdensome steps that would have prevented or mitigated the consequences of CFO’s destruction of evidence, court concluded that adverse inference was appropriate and made certain findings of fact which were binding and conclusive for all purposes in the case

Nature of Case: Airline undergoing reorganization alleged that prospective investor (Mesa) breached confidentiality agreement and misused confidential information

Electronic Data Involved: Confidential information stored on secure website

Hunts Point Realty Corp. v. Pacifico, 2007 WL 2304859 (N.Y. Sup. July 24, 2007)

Dec 01 2007

Key Insight: Although court concluded that plaintiff had not adequately proven damages under any theory and thus damage award was zero, court found that defendant’s “unabashed flaunting of this Court’s preservation order” in failing to preserve emails resulted in additional work by plaintiffs’ counsel and the court, and as sanction, court awarded attorneys’ fees and costs for all work done by counsel related to defendant’s failure to preserve email

Nature of Case: Breach of contract

Electronic Data Involved: Email

Charles Schwab & Co., Inc. v. Karpiak, 2007 WL 136743 (E.D. Pa. Jan. 12, 2007)

Dec 01 2007

Key Insight: Court adopted magistrate’s recommendation and issued preliminary injunction ordering defendants to return Schwab’s client and business information and to turn over to their counsel any information in electronic form (including but not limited to personal computers, lap top computers, Blackberries, Treos, Palm Pilots, mobile telephones and any other device in, or on, which data can be electronically stored), so that defense counsel could preserve the integrity of such devices and data and immediately make such devices and data available for inspection and duplication by plaintiff’s counsel and/or computer forensic consultants

Nature of Case: Breach of employment agreement

Electronic Data Involved: Trade secret information in electronic form

Qantum Communications Corp. v. Star Broad., Inc., 473 F. Supp. 2d 1249 (S.D. Fla. 2007)

Dec 01 2007

Key Insight: Court imposed sanctions of default judgment and award of reasonable attorney fees and costs based upon defendants’ pattern of discovery misconduct, which included defendant’s lying under oath regarding key issue in case and failing to produce key “smoking gun” documents; court set hearing to determine the appropriate amount of damages and fees and costs

Nature of Case: Action for specific performance of asset purchase agreement

Electronic Data Involved: Email

J.B. Hunt Transp., Inc. v. Adams, 2007 WL 2080391 (E.D. Mich. July 19, 2007)

Dec 01 2007

Key Insight: Court found that no adverse inference was warranted where plaintiff preserved driver logs and repair documents for the requisite amount of time provided in applicable federal regulations, then discarded them in accordance with its standard business practices, since other uncontroverted evidence existed which rebutted the requested adverse inference

Nature of Case: Insurance coverage

Electronic Data Involved: Driver logs and repair records for tractor and trailer involved in accident

Tag:Data Preservation